- MEANING OF JUDICIAL SEPARATION
- GROUNDS FOR MAKING A DECREE
- EFFECT OF DECREE
- DISCHARGE OF DECREE OF JUDICIAL SEPARATION
- PROCEDURE FOR INSTITUTING ACTION
Meaning of Judicial Separation
Judicial separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. Unlike divorce, judicial separation does not terminate the marriage but allows the spouses to live apart. This decree can address issues like maintenance, child custody, and property division without dissolving the marital bond.
Grounds for Making a Decree of Judicial Separation
Under Nigerian law, specifically the Matrimonial Causes Act (MCA), Cap M7, LFN 2004, provides for the grounds for judicial separation and are similar to those for divorce. They include:
1.Adultery: If a spouse has committed adultery and the petitioner finds it intolerable to live with them as provided under (Section 15(2)(a) it can be a ground for judicial separation.
2.Unreasonable Behaviour: If a spouse has behaved in such a way that the petitioner cannot reasonably be expected to live with them as provided under (Section 15(2)(c)) it can be a ground for judicial separation. See the case of Williams v. Williams (1994) 1 NWLR (Pt. 321) 329 where the court illustrated unreasonable behaviour as grounds for judicial separation.
3.Desertion: If a spouse has deserted the petitioner for a continuous period of at least one year as provided under (Section 15(2)(d) it can also be a ground for judicial separation. See the case of Ibeawuchi v. Ibeawuchi (1978) 3 SC 175 where the court examined the conditions under which desertion could be proven.
4.Living Apart: If the spouses have lived apart for a continuous period of at least two years, and both consent to the decree as provided under (Section 15(2)(e) it can also be a ground for judicial separation.
5.Failure to Maintain: If the respondent has failed to provide maintenance for the petitioner or the children of the marriage as provided under (Section 39(1) then it can be a ground for judicial separation.
Effect of Decree of Judicial Separation
A decree of judicial separation has several legal effects and they include:
1.Separation of Finances: This is where the spouses are no longer financially tied, and each may be responsible for their own debts and obligations.
2.Custody of Children: This is where the court can make orders regarding the custody and maintenance of children as provided under section 70.
3.Property Division: This is where the court can divide matrimonial property or make orders regarding its use as provided under section 72. See the case of Omotunde v. Omotunde (2000) 9 NWLR (Pt. 672) 310 where the court dealt with the division of matrimonial property following a decree of judicial separation.
4.Inheritance Rights: The decree does not affect inheritance rights, as the marriage remains legally intact.
5.Remarriage: This is where the spouses cannot remarry, as they are still legally married.
Discharge of Decree of Judicial Separation
A decree of judicial separation can be discharged under certain circumstances:
1.Reconciliation: If the spouses reconcile and resume cohabitation, they can apply to the court to have the decree discharged.
2.Court Order: The court may discharge the decree if it is convinced that the circumstances that led to the decree no longer exist or have been resolved.
Procedure for Instituting Action for Judicial Separation
The procedure for instituting an action for judicial separation in Nigeria involves several steps:
1.Filing a Petition: This is where the petitioner must file a petition in the High Court. This petition should state the grounds for judicial separation and include relevant evidence as provided under MCA section 39.
2.Service of Petition: The petition must be served on the respondent. However, the court may order substituted service if the respondent cannot be located.
3.Response: This is where the respondent may file an answer to the petition, either admitting or contesting the grounds for judicial separation.
4.Hearing: This is where the court will schedule a hearing to examine the evidence presented by both parties.
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