26/04/2021
JUDICIAL SEPERATION, A TOOL TO SAVING SELF FROM DOMESTIC VIOLENCE WHILE REMAIN MARRIED.
Introduction
There is a rapid increase in domestic violence in Nigeria with horrible stories forming news headlines lately. According to UN briefing on gender base violence on the 4th day of May 2020 there is a general increase in GBV across all six geopolitical zones in Nigeria and service providers have reported sharp increases in cases of intimate partner violence and domestic violence. Most victims of domestic violence (most especially women) do not wish to leave the marriage for one reason or the other even at point of death yet have no option as to what to do to save themselves from such marriage misfortune.
The purpose of this write up is to give solution to these persons whom as a result of domestic violence or other matrimonial problems would on the face of it want a divorce but for some reasons (such as love for the partner, children of the marriage, stigma associated with divorce in some villages etc.) would prefer to remain married. Happy reading.
SEPARATION
Separation here simply means a situation where the couple ceases to cohabit. According to Black’s Law Dictionary, 10th edition, Judicial separation means ‘’an arrangement whereby a husband and wife live apart from each other while remaining married, either by mutual consent or by judicial decree: the act of carrying out such arrangement’’
Separation may be by agreement or by order of court. If separation is by order of court, it is called a decree of Judicial Separation. It is the later that forms the subject matter of our current discussion.
Under section 41 and 42 of the Matrimonial causes Act and the case of Emmanuel v. Funke (2017) LPELR-43251 (CA) A decree of judicial separation relieves the parties from the obligation to cohabit while it is in the operation, all other rights, responsibilities and obligations remain intact.
The obligations that are not affected by legal separation include the followings:
1. Neither party can remarry while the decree subsists
2. The marriage is still intact
3. The welfare, maintenance and education of the children of the marriage must be catered for.
4. Either party may institute an action against the other in contract or tort.
5. Where either of the party dies intestate (without a will) property of the deceased shall devolve to the surviving party.
6. Where the husband is ordered by the decree to pay maintenance to the wife and defaults, he shall be held liable for necessaries supplied for the wife's use.
GROUNDS FOR JUDICIAL SEPERATION
A decree of judicial separation can be made in any of the circumstances stated with respect to grounds for dissolution of marriage under section 15(2) & 16(1) see section 39 of the Matrimonial Causes.
It therefore follows that a decree for judicial separation is not simply granted, the parties must prove either of the acts stated in Sections 15(2) and 16(1) of the Act.
A party must in the petition filed before the High Court in Nigeria site any one or more of the following as the ground for a decree of judicial separation: thus
1. That the respondent has willfully and persistently refused to consummate the marriage
2. That since the marriage, the Respondent has committed adultery, which the Petitioner finds it intolerable to live with. Such acts include, r**e, so**my, be******ty, habitual drunkenness, drug addiction, is of unsound mind etc
3. That the Respondent has deserted the Petitioner for a continuous period of 1 year immediately preceding the filing of the petition.
4. That the parties have lived apart for a continuous period of 2 years or 3 years immediately preceding the filing of the petition, however for that of 2 years, the Respondent does not object to the granting of the decree
5. That the other party has refused to comply with a decree for restitution of conjugal rights for at least a year.
6. That the other party has been absent from the marriage for such a time to raise reasonable presumptions of death.
This is an alternative to divorce as it does not deprive a married woman from other benefits of marriage other that cohabitation.
DISTINCTION BETWEEN LEGAL SEPARATION AND DISSOLUTION OF MARRIAGE
The legal separation is different from the dissolution of marriage because, in dissolution of marriage, the parties cease to have any legal duties or obligation to each other. A decree absolute in the dissolution of a marriage brings an end to the marriage and the parties can remarry/ contract fresh marriage as if the marriage never existed while the judicial separation does not dissolve a marriage.
The process used in instituting a legal separation in Nigeria is by a Petition filed at any High Court in Nigeria.
EFFECT OF JUDICIAL SEPARATION
A decree of Judicial Separation when ordered by the Court relives the petitioner from the obligation to cohabit with the other party to the marriage while the decree remains in operation but it does not affect the marriage or the status, right and obligations of the parties to the marriage.
Under Section 44 of the Act, it states that a decree of Judicial Separation does not prevent the institution of the petition for divorce if either party to the marriage chooses to petition for a decree of dissolution of marriage.
It is also important to note that, the court, where the parties voluntarily resume to start cohabiting, can discharge a decree of Judicial Separation. This is done by both parties applying to the court for an order discharging the decree as provided under Section 45 of the Act.
CONCLUSION
Kindly contact your lawyer for a petition for Decree of Judicial Separation if he/she is beating you/maltreating you and you find it intolerable. It is better to be separated for some years or months than to die in silence as it is not always easy to walk away from any marriage.
Thanks for reading.
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