Judicial Separation Of Marriage In Nigeria: When Divorce Is Not The Only Option

433 views | Chinemerem Nnawuihe | September 1, 2020

Judicial Separation is a matrimonial relief granted to parties in a marriage when they do not have the intention to dissolve their marriage. The essence is to relieve the petitioner of the duty of cohabitation with the respondent for matrimonial misconduct such as cruelty or adultery.

Under the Matrimonial Causes Act (MCA), Judicial Separation can be granted on the same grounds as those for a grant of divorce.

Another ground for Judicial Separation could be desertion for at least two (2) years or failure of the respondent to comply with the decree for restitution of conjugal rights.

Prior to the commencement of the MCA, there was no minimum time within which a petition for Judicial Separation could be presented. However, the “Two-year Rule” provided under Section 30 of the MCA, has been made applicable to Judicial Separation.

This means that, a petition for Judicial Separation cannot be presented to the court if the parties have been married for less than 2 years except they obtain the leave of the court.

The High Court of the various states in Nigeria is the court of first instance and the jurisdiction of the court emanates from the domicile of the parties or in the case of the wife on her residence.

Grounds For Judicial Separation

The grounds for Judicial Separation are also the same grounds upon which a marriage can be dissolved.

The grounds are set out in Section 15(1) of the MCA, thus:

  1. Wilful and persistent refusal of the respondent to consummate the marriage.
  2. The commission of adultery by the respondent and the intolerance of the petitioner to be able to live with him or her.
  3. The respondent’s behaviour in a manner that the petitioner could not reasonably be expected to live with him or her.
  4. Desertion of the respondent for a continuous period of one (1) year immediately preceding the presentation of the petition.
  5. Living apart of the spouses for a continuous period of at least two (2) years immediately preceding the petition and if the respondent does not object to the petition.
  6. Living apart for a continuous period of three (3) years immediately preceding the presentation of the petition.
  7. The failure of the other party for a period of not less than one (1) year to comply with the decree of restoration of conjugal rights.
  8. Absence of the other party from the petitioner as to be presumed dead.

Bars To Judicial Separation

There are certain bars to Judicial Separation; they can either be absolute bars or discretionary bars. The essence of these bars is that a petitioner whose conduct has been privy to any matrimonial misconduct leading to the breaking down of the marriage may be precluded from obtaining a decree of Judicial Separation.

These bars are provided for in Section 40 of the MCA which states that, Sections 18 – 24 & Sections 26 – 32 will apply to a decree for Judicial Separation.

Section 18 of the MCA talks about constructive desertion. This is when by conduct, a party to a marriage constitutes excuses or a just cause for the other party to live separately. This will be deemed a willful desertion without excuse or just cause even though the person may not, in fact, intend his/her conduct to occasion living apart.

Section 19 of the MCA makes provision for refusal to resume cohabitation by one of the parties. If one of the parties to a marriage refuses the other’s bonafide request to resume cohabitation, it shall constitute wilful desertion without just cause or excuse from the date of the refusal on the part of the party so refusing.

Section 20 of the MCA, provides for continuation of desertion after insanity. This means that, if after desertion one party becomes insane, the desertion shall not be deemed to have been terminated if it appears to the court that the desertion would probably have continued if the deserting party had not become insane.

Under Section 21 of the MCA, there is no restriction on the finding of non-consummation. This provision states that, there cannot be non-consummation of marriage unless as at the commencement of the hearing of the petition the marriage had not been consummated.

Other bars to Judicial Separation are: condonation, connivance and collusion provided under Sections 26 & 27 of the MCA. They are absolute bars to the granting of a decree of Judicial Separation.

  1. Condonation: This refers to where a petitioner has condoned or accepted misconduct of the other party and therefore is estopped from petitioning on that particular ground. It is the conditional forgiveness of a marital misconduct of a spouse and the reinstatement of him or her to the position of a spouse.

In the case of Okala V Okala (1973) ECSLR at pp 71-72, the husband was committing adultery with their house-help but the wife knowing that the house-help was at her husband’s beck and call and that they were committing adultery took no active or passive step to stop them but rather tacitly acquiesced in the commission of the adultery.

The court, therefore, held that, she could not in the circumstances show that she found it intolerable to live with her husband.

2.  Connivance: This is a situation where the petitioner connives with the respondent to procure the act or conduct which is being relied upon as a ground for Judicial Separation.

It is based on the legal maxim, Volenti non fit injuria – which means that, no act is actionable at the suit of any person who has expressly or implicitly asserted to it either in advance or contemporaneously. Simply put, no harm is done to a person who has consented to an act.

3. Collusion: It refers to a situation where the petitioner tries to give false evidence or bring in any fraudulent thing that will cause a perversion of justice. This exists if there is an agreement between the spouses with the intent to deceive the court into granting a decree of divorce which it would not otherwise grant.

An example is, where a party in order to obtain a decree for Judicial Separation of marriage, falsely accepts to have committed either rape, adultery, bestiality, sodomy etc.

Under Section 28 of the MCA, the court has discretionary powers to refuse to make a decree for Judicial Separation where:

  1. The petitioner committed an adultery that has not been condoned or having been condoned by the respondent, has been revived.
  2. The petitioner has willfully deserted the respondent before the matter relied upon for the petition or where those matters involve other matters occurring during or extending over a period before the expiration of that period.
  3. The habits of the petitioner or the conduct of the petitioner has contributed to the matrimonial misconduct of the respondent.

Effects Of Judicial Separation

It relieves the petitioner from the obligation to co-habit with the other party to the marriage while the decree is in force.

However, the order of Judicial Separation shall not affect the marriage or the status, rights or obligations of the parties to the marriage. In effect, Judicial Separation puts an end to desertion.

Under Section 45 of the MCA, the decree of Judicial Separation can be discharged where the parties start to co-habit voluntarily and where either of the parties applies to the court for a discharge of the order of Judicial Separation.

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