Judicial Separation, or separation (for short), is a decree made by a court whereby a husband and wife live apart from each other while remaining married.
Judicial separation is an option for those who object, for one reason or the other, to an outright divorce. It can be brought at any time during the marriage.
Grounds for Judicial Separation
The grounds for judicial separation are the same as facts that one must prove in order to obtain a decree of divorce. See my earlier article on the reasons for divorce.
When filing for judicial separation, you can ask the court to make orders as to maintenance, settlement of properties, custody and arrangement for children of the marriage and damages for hurt occasioned by the wrong of the other spouse.
Unlike a divorce, one doesn’t need to prove that a marriage has broken down irretrievably before a judicial separation is granted. It suffices to only prove the facts. Furthermore, there is only one decree made for judicial separation, while divorce has two – an order nisi and absolute.
Effect of Judicial Separation
According to the Matrimonial Causes Act, a decree of judicial separation has the following effects on the marriage of a husband and wife:
(1) It relieves the spouse seeking the separation from the obligation to cohabit with the other spouse to the marriage while the decree remains in operation.
(2) It does not affect the marriage or the status, rights and obligations of the parties to the marriage. This means that:
- a)The man and woman would still be called husband and wife. It is a separation, not a divorce.
- b)The wife still has a right to maintenance from the husband, and the wife still has obligations to the husband. These obligations must be spelt out in the judicial decree. The spouse seeking for separation must specifically state what he/she wants in the petition. The parties are also allowed to decide on what they want the arrangement to be.
(3) While a decree of judicial separation is in operation, the couple to the marriage may sue each other in contract or in tort.
(4) Where any of the couple dies during the separation, any property owned by the deceased spouse would become that of the surviving spouse.
(5) While the separation is in place, either spouse may sue the other for non-performance of their obligations under the decree for judicial separation.
Not a Waste of Time and Money
Seeking judicial separation is not a waste of time and money.
(1) It is a good way of holding on until tempers cool down.
(2) It is a good way to ensure that the couple continue to care for their children, if any, collectively.
(3) It provides time for the couple to consider their options, reminisce over their faults, and consider whether living apart from each other is the best way to go.
(4) It also provides a means for further reconciliation between the parties.
(5) It preserves the marriage.
Finally, that a spouse is judicially separated from the other is not a bar to bringing a divorce petition before the court while the separation is in force. If you the facts complained of during the petition for judicial separation continue, the spouse can seek an outright divorce, notwithstanding the existence of a judicial separation. As a matter of fact, if the same spouse who initiated the judicial separation is the same one who brings a petition for divorce, the court would more likely grant the decree for divorce.
Further Readings:
- Matrimonial Causes Act
– Sections 39-46: Judicial Separation
– Sections 15, 16: Dissolution of Marriage
- Matrimonial Causes Rules, Order V
– Part 2: Petitions for Dissolution of Marriage
– Part 4: Petitions for Judicial Separation
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