In the past few months, this phrase has been consistent: “I still want my marriage but I do not want a divorce, we have gone through counselling but nothing seems to be working. Is there a legal way of getting a separation?
I usually answer by saying yes, there is. The legal way of getting a separation from marriage is called judicial separation.
Judicial separation can simply be defined as a formal separation which is sanctioned by the court. Section 39 of the Matrimonial Causes Act (MCA) provides the grounds for judicial separation.
WHAT ARE THE GROUNDS FOR JUDICIAL SEPARATION?
First, section 39 of the MCA provides that the grounds listed in Section 15(2) and 16 (1) of the Matrimonial Causes Act may be proved to get a decree for judicial separation. Where a party by his facts and evidence establish any of the conditions listed in Section 15(2) and 16 (1) of the Matrimonial Causes Act, the party can opt for judicial separation.
For proper understanding, a Petitioner is the person who instituted a suit while the Respondent is the Spouse to the Petitioner.
The facts listed in Section 15(2) and 16 (1) of the Matrimonial Causes Act are:
- The Respondent has willfully and persistently refused to consummate the marriage i.e have sex with the petitioner;
- Adultery: that since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
- Unreasonable behaviour by the Respondent: that since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
- Desertion for one year: that the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
- Living apart for two or three years: that the parties to the marriage have lived apart for a continuous period of at least two years or three years immediately preceding the presentation of the petition and the Respondent does not object to a decree being granted;
- The other party to the marriage has, for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under this Act;
- The spouse has reasons to believe that the other party to the marriage is dead, having been absent for a very long time: that the other party to the marriage has been absent from the Petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
- The spouse has committed rape, sodomy or bestiality: The Respondent has committed rape, sodomy, or bestiality since the marriage.
- A habitual drunkard or drug abuse: the Respondent has been a habitual drunkard for at least two years or that the Respondent has been habitually intoxicated by excessive use of sedatives, narcotics, or stimulating drugs for at least two years.
- Within five years of the marriage, the spouse has been frequently convicted of crime and the sentence is about three years or leaving a spouse without reasonable support: the Respondent has suffered frequent convictions for crimes within a five-year period, with an aggregate imprisonment of not less than three years and the Respondent has habitually left the Petitioner without reasonable means of support.
- Imprisonment for serious offenses: the Respondent has been in prison for not less than three years following conviction for an offense punishable by death, life imprisonment, or imprisonment for five years or more, and is still in prison at the date of the petition.
- Violence against the Petitioner: the Respondent has been convicted within one year of the petition for attempting to murder or unlawfully kill the Petitioner or that the Respondent has been convicted of intentionally inflicting or attempting to inflict grievous harm or hurt on the Petitioner.
- Failure to pay maintenance: the Respondent has habitually and willfully failed to pay court-ordered or agreed maintenance for the Petitioner for two years preceding the petition.
- Unsound Mind: the Respondent is of unsound mind at the date of the petition and unlikely to recover and the Respondent has been confined for at least five years within the last six years in an institution where persons can be confined for unsoundness of mind.
TIME FRAME FOR FILING FOR JUDICIAL SEPARATION
A party can seek judicial separation at any time after marriage.
DO I STILL HAVE OBLIGATIONS IN THE MARRIAGE?
A decree of judicial separation only relieves the Petitioner from the obligation of cohabitation. I can hear someone saying what is cohabitation?
Cohabitation is the act of living together.
Simply put, with a decree of judicial separation parties are relieved from living together.
WHAT IS THE EFFECT OF A DECREE OF JUDICIAL SEPARATION?
A decree of judicial seperation does not affect the status, right and obligations of the parties to the marriage. For example, Mrs. Tueh is still married to Mr. Tueh.
Mr. Tueh is still obligated to pay the children’s school fees.
OH! AFTER A DDECREE FOR JUDICIAL SEPERATION, CAN I GET A DIVORCE THEREAFTER?
A decree of judicial separation does not stop either party to the marriage from instituting a dissolution of marriage (divorce) by the provisions of section 44 of the Matrimonial Causes Act.
WHAT IF PARTIES WANT AN END TO THE DECREE OF JUDICIAL SEPARATION?
If parties voluntarily start living together, either party may apply for an order to discharge the decree of judicial separation. This is done by an application to the court, the court will make an order discharging the decree if both parties consent to it or if the court is satisfied that they have voluntarily resumed living together i.e cohabitation.
Mercy T. Abudu Esq.