Introduction To Steps To Judicial Separation
Navigating marital issues can be a difficult journey. When things get tough, many people assume divorce is the only option. However, what if you could have the space you need without ending your marriage? Judicial separation, also known as legal separation, is a powerful alternative that offers a legal “breathing space” for couples. It’s a solution that allows you to live apart while remaining legally married, giving you and your spouse the chance to re-evaluate your relationship without the finality of divorce.
This article will break down what judicial separation is, the grounds for judicial separation, and its legal implications for your relationship rights.
Why Consider Judicial Separation Instead of Divorce?
Divorce is final; it dissolves your marriage completely. But sometimes, couples just need a temporary separation to address their issues. This is where Judicial Separation comes in.
In one of my appearances before a High Court Judge in Ikeja, he shared a personal experience. He was onboard a train in the United States when he overheard a couple he had previously granted a dissolution decree.
He discovered the couple was back together. However, he Subsequently overheard them jokingly say, “Isn’t this the judge who got us divorced?” In essence, this story shows that divorce reconciliation is a possibility even after a decree…
This encounter highlighted that the couple were likely unaware of alternative solutions to resolve their marital issues, and were instead steered towards divorce. The Judge was obviously doing his job but it is what it is.
In Nigeria, the Matrimonial Causes Act, provides various matrimonial remedies, and steps to judicial separation is one of them. Unlike divorce, which completely ends your relationship rights and responsibilities, Judicial Separation offers a middle ground. It’s an ideal choice for couples who, for personal, religious, or financial reasons, want to remain legally married.
The Grounds for Judicial Separation
The Matrimonial Causes Act specifies in Section 39 that you can bring a petition for judicial separation on the same grounds as dissolution. Therefore, if you have a valid reason to file for a divorce, you can also use that same reason to petition for a judicial separation decree. Consequently, you can use these grounds to petition for judicial separation.:
1. Willfully and Persistent refusal by your spouse to have sexual relations with you
2. Adultery by one of the spouse which the other spouse finds intolerable to live with.
3. That your spouse has behaved in a way that you cannot reasonably be expected to live with him or her
3. Desertion by your spouse for at least one year.
4. You and your spouse have lived apart for a period of at least two (2) years and the Respondent isn’t objecting to a decree being granted.
5. Where parties have lived apart for a period of at least three (3) years.
6. Either of the parties has refused to comply with a decree for restitution of conjugal rights for at least a year
7. If the other party has been absent from the marriage for such a time to raise reasonable presumptions of death.
Legal Implications and Effect of Judicial Separation
When the court orders a judicial separation decree, it has several key legal implications for your relationship rights.
In Nigeria, Section 41 of the Matrimonial Causes Act states that a decree of judicial separation relieves the petitioner from the obligation to cohabit with the other party.
While the decree is in operation, the law cannot deem either spouse to have deserted the other. Therefore, if a husband forces his wife to have sexual intercourse against her will during judicial separation, he may be committing rape. For example, the law sees the spouses as legally separated and cannot claim one deserted the other. Consequently, the normal rules of marriage may not apply during the period of separation.
Judicial separation effectively ends the spousal right to sexual intercourse without consent.
Another significant legal effects of judicial separation is the issue of Maintenance and Support.
A decree of judicial separation does not invalidate a spouse’s responsibility to provide financial maintenance. For example, a husband will still be liable to pay for necessaries supplied to his wife during the period of separation. Specifically, the decree does not terminate his obligation to maintain her. Consequently, the court recognizes that the spousal obligation continues..
The legal implications of judicial separation also extend to inheritance. If one spouse dies without a will (intestate) while a judicial separation is in effect, the surviving spouse’s property rights are affected.
In this scenario, the court will distribute the deceased’s property as if the other spouse had predeceased them. For instance, this is a critical aspect of judicial separation that directly impacts your rights to inheritance. Ultimately, the court treats you as if you are no longer married for the purposes of inheritance.
A judicial separation decree doesn’t prevent a party from suing the other in tort or contract. For instance, while the decree alters the marital relationship, certain legal avenues remain open. Consequently, you can still pursue legal action against your spouse despite the separation..
Furthermore, since the couple remains legally married, neither spouse can establish a new domicile.
Conclusion To Steps To Judicial Separation
Judicial separation severs cohabitation but not the legal bond of marriage. It serves as a powerful tool for couples who need a break but aren’t ready to end their relationship rights and responsibilities. If you and your spouse decide to reconcile during the judicial separation, you can ask the court to discharge the decree and allow you to resume cohabitation. Many people overlook judicial separation as a flexible solution that protects your rights while providing a path toward resolution.
STEPS TO JUDICIAL SEPARATION
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