October 28, 2025

JUDICIAL SEPARATION AND DESERTION: WHAT YOU NEED TO KNOW

by Ekosolicitors

INTRODUCTION ON JUDICIAL SEPARATION AND DESERTION

Marriage is a legal union, which could either be both by law and by custom, where two people agree to come together and live together as husband and wife. They also agree that the provisions of the law govern the union. Not every marriage is rosy, a party in a marriage can choose to leave a marriage any day. He cannot be forced to remain in the marriage, as such will amount to a violation of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria ( as amended).

Are judicial separation and desertion same? Absolutely not, moving forward, you will understand how judicial separation and desertion are not the same. Though both involve separation between spouses, they differ in nature, legal effect, and procedure.

JUDICIAL SEPARATION

Judicial separation means the physical separation between the husband and wife of a statutory marriage as ordered by a court of competent jurisdiction. In the case of Kasingye v Kasingye the judge, According to Black’s Law Dictionary pg. 1572 10^{^th} Ed, Judicial separation”
…… is an agreement whereby a husband and wife live apart FROM EACH OTHER while remaining married, either by mutual consent ( of them in a written agreement ) or by judicial decree.

Section 39 of the Matrimonial Causes Act states that

“Subject to this part, a petition under this Act by a party to a marriage for a decree of judicial separation may be based on one or more of the facts and matters specified in Section 15(2) and 16(1) of this Act.”

This means that the grounds for dissolution of marriage is same as the grounds for judicial separation. These grounds are;

The respondent has willfully refused to have sexual relations with you
Respondent has committed adultery, and the petitioner finds it intolerable to live with the respondent
The respondent has behaved in such a way that the petitioner cannot live with the respondent
Desertion for at least 1 year
The parties have lived apart for a continuous period of 2 years and the respondent did not object to the petition
The parties have lived apart for three years
The other party has failed to comply with the restitution of conjugal rights for at least a year
If the other party has been present from the marriage for such a time to raise reasonable presumptions of death

The effect of a decree of judicial separation is that it relieves the petitioner from the obligation to cohabit with the other party to the marriage according to Section 41 of the MCA. While this is ongoing, the court cannot deem that there is desertion going on. 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.

Judicial separation is suspension of cohabitation duty, but not dissolution of marriage.

Section 41 and 42 of the Act and the case of Emmanuel v. Funke (2017) LPELR-43251 (CA) emphasise that a decree of judicial separation relieves the parties from the obligation to cohabit while it is in operation; all other rights, responsibilities, and obligations remain intact. The obligations that are not affected by legal separation include the followings:

Neither party can remarry while the decree subsists
The marriage is still intact

The welfare, maintenance and education of the children of the marriage must be catered for.

Either party may institute an action against the other in contract or tort.
Where either of the party dies intestate (without a will) property of the deceased shall devolve to the surviving party.
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.

A decree for judicial separation is not simply granted, the parties must prove either of the facts stated in Sections 15(2) and 16(1) of the Act. A party must file the petition before the High Court of any State in Nigeria.

DESERTION

Black’s Law Dictionary (11th edition) defines desertion as “the willful and unjustified abandonment of a person’s duties or obligations.”

The Court of Appeal in Agienoji v. C.O.P., Edo State (2007) defined desertion as:

the act by which a person abandons and forsakes, without justification, or unauthorised, a station or condition of public, social or family life, renouncing its responsibilities and evading its duties.

To claim desertion as a ground for divorce in Nigeria, the petitioner must follow the legal procedures set out in the Matrimonial Causes Act and the Matrimonial Causes Rules. The process begins with the filing of a divorce petition, which must clearly state desertion as the reason for seeking dissolution. The petition should include evidence of the desertion, such as testimonies, documents, and any relevant communications that demonstrate the abandonment and the period it has lasted.

In many cases, the court will also consider whether efforts were made to restore the marriage.
One of the key elements in proving desertion is establishing the intent behind the departure. Desertion is not limited to the physical departure of one spouse from the marital home. It also includes emotional and financial abandonment.

Elements of desertion are;

De facto separation: this means the ending of cohabitation by severing all marital obligations.
Aminus Deserendi: This is the intention to withdraw from cohabitation permanently
There must be lack of just cause
Absence of consent.

DIFFERENCES BETWEEN JUDICIAL SEPARATION AND DESERTION

The major keyword to differentiate between judicial separation and desertion is mutual consent. In judicial separation, the parties are aware of the intention to cease cohabitation, and they both agree to live apart with the court order, but in desertion, the deserter just leaves the matrimonial home without informing the other party of his/her intention to cease cohabitation. The absence of consent in desertion and court order is the sole difference from judicial separation.

Another difference is that judicial separation is done by the court’s decree, while desertion is a voluntary act, and no court decree is necessary before a deserter decides to leave the matrimonial home.

Desertion serves as a ground for the dissolution of a marriage, and it also serves as a ground for judicial separation. Desertion is a matrimonial offense, while judicial separation can serve as a remedy for intolerable behaviour of other spouses.

CONCLUSION ON JUDICIAL SEPARATION AND DESERTION

Desertion and judicial separation are totally different from each other. If you decide to leave your matrimonial home for more than a year without the consent or without informing your spouse, you are giving your spouse a ground to file a petition for dissolution of the marriage, which is called desertion. But when there is mutual consent with a court order, it is judicial separation.

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