Thinking! You Don't Want that Divorce yet? All you need to Know About Judicial Separation- SNATHAP

Judicial Separation under Nigerian Law

Judicial separation is a legal process that allows married couples to live apart while remaining legally married. Unlike divorce, it does not terminate the marriage but provides relief from marital obligations. In Nigeria, judicial separation is governed by the Matrimonial Causes Act (MCA) 1970.

Legal Basis for Judicial Separation

Under Section 39 of the MCA, a party to a marriage may apply to the court for a decree of judicial separation based on the same grounds as divorce, except that the marriage is not dissolved.

Grounds for Judicial Separation

According to Section 15(2) of the MCA, a decree of judicial separation can be granted if the petitioner proves that the marriage has broken down irretrievably based on one or more of the following:

1. Adultery – The spouse has committed adultery, and the petitioner finds it intolerable to live with them.
2. Unreasonable behavior – The spouse has behaved in a way that makes it unbearable to continue living together.
3. Desertion – The spouse has deserted the petitioner for at least one year.
4. Separation for two years (with consent) – The couple has lived apart for two years, and both consent to the separation.
5. Separation for three years (without consent) – The couple has lived apart for three years, even if one party does not consent.
6. Failure to comply with restitution of conjugal rights – The respondent has refused to resume cohabitation after a court order for restitution.
7. Presumption of death – The spouse has been absent for at least seven years and is presumed dead.

Effects of Judicial Separation

1. End of Cohabitation Obligation – The spouses are no longer required to live together.
2. Marriage Still Intact – Unlike divorce, judicial separation does not dissolve the marriage.
3. Financial and Property Rights – The court can make orders concerning maintenance, property division, and child custody.
4. Inheritance Rights Remain – Since the marriage is still valid, either party can still inherit from the other unless a will states otherwise.
5. Right to Divorce – Either spouse can later file for divorce based on the separation.

Procedure for Obtaining Judicial Separation

1. Filing a Petition – The petitioner files an application at the High Court (Federal or State) stating the grounds for separation.
2. Service of Process – The respondent is served with court papers.
3. Court Hearing – Both parties present their case before a judge.
4. Judgment and Decree – If the court is satisfied, it grants a Decree of Judicial Separation.

Difference Between Judicial Separation and Divorce

Conclusion

Judicial separation in Nigeria provides an alternative for couples who wish to live apart without ending their marriage. It is often chosen for religious, financial, or personal reasons. However, it does not grant the right to remarry unless a full divorce is later obtained.

Would you like more details on any aspect?

Author: Olanlekan Natha-Alade

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