Grounds For Legal Separation In Nigeria: What You Need To Know

Introduction

Are you considering a legal separation from your spouse in Nigeria? Whether you are in a statutory marriage or a customary law marriage, understanding the grounds for legal separation, otherwise known as judicial separation is very important. This article will guide you through the position of Nigerian laws on legal separation. It will help you to make informed decisions about your relationship and future.

What is Legal Separation?

Before we dive into the grounds for separation, let us briefly explain what legal separation means in Nigeria. Legal separation is a court-approved arrangement where a married couple lives apart but remains legally married. Legal separation is different from divorce, as the marriage is not dissolved, but it provides a framework for managing finances, property, and child custody while living separately. Legal Separation is also known as judicial separation.

Grounds for Legal Separation in Statutory Marriages

Section 39 of the Matrimonial Causes Act (MCA) provides that a petition for a decree of judicial separation may be based on one or more of the facts and matters specified in sections 15(2) and 16(1) of this Act. However, the grounds for judicial separation as contained in sections 15(2) MCA are as follows:

that the respondent has willfully and persistently refused to consummate the marriage;
that since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with 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;
that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;
that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
that 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;
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.

Additional Grounds For Legal Separation As Provided in 16(1) Of The Matrimonial Causes Act (MCA) Are As Follows:

Serious Sexual Offenses: The respondent has committed rape, sodomy, or bestiality since the marriage.
Substance 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.
Frequent Criminal Convictions: 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 due to unsoundness of mind.

Separation in Customary Law Marriages

Customary law marriages are recognized and valid in Nigeria. However, it has a different approach to separation. Unlike statutory marriages, customary law does not typically have a formal process for legal separation. Nevertheless, customary practices often allow for informal separation arrangements.

In many Nigerian cultures, when marital issues arise, families of both spouses often intervene to mediate and potentially reconcile the couple. If reconciliation fails, the couple may decide to live apart without formally ending the marriage. This type of separation is at best an informal separation and it has nothing to do with judicial processes.

Bars/Defence/Barriers To Legal Separation

Even if the petitioner has successfully proved any of the above grounds for judicial or legal separation, the court will not make a decree for judicial separation where the respondent proved collusion, connivance or condonation against the petitioner. These barriers, were discussed in detail in this article on divorce and they are also applicable to judicial separation¹.

Implications/ Effects of Legal Separation

Implications or effects of legal separation in Nigeria are as follows:

Relief From Cohabitation: a decree of judicial separation relieves the petitioner from the obligation to cohabit with the other spouse while the decree is in effect.²
Right to Legal Action: during the period of a judicial separation, either spouse can initiate legal proceedings in contract or tort against the other³
Devolution of Property on Intestacy : If a spouse dies without a will while a judicial separation is in effect, their property will be distributed as though they had outlived the other spouse⁴.
Liability for Maintenance: If a husband is ordered to pay maintenance to his wife following a judicial separation and fails to do so, he remains liable for the cost of necessities provided for her⁵.
Joint Powers During Separation: A wife, during a judicial separation, retains the ability to jointly exercise any power that is granted to her and her husband⁶.

Conclusion

Legal separation in Nigeria, whether in statutory or customary marriages, is a complex issue that requires a very careful consideration. While statutory marriages have clear legal pathways for separation, customary marriages often rely on traditional practices and family mediation, hence informal.

So, if you are contemplating separation, it is important to understand your rights, seek legal advice, and consider the long-term implications for you and your family. Each case is unique, and seeking professional advice is very crucial. If you have any questions or need guidance tailored to your need, your may reach out to me by calling or sending a WhatsApp message to +2349045532566

Footnotes

1. https://www.elawfirm.ng/barriers-to-divorce-in-nigeria/

2. Section 41 MCA

3. Section 42(1) MCA

4. Section 42(2) MCA

5. Section 42(3) MCA

6. Section 43 MCA

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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