Introduction
Separation and divorce are two terms that are often confused. While both involve couples living apart, the legal implications of each are different. Understanding the difference between separation and divorce is very important for anyone considering to file a petition for divorce or judicial separation in Nigeria This article explores the difference between separation and divorce with the aid of the Nigerian Court of Appeal decision in the case of Ezeaku v. Okonkwo & Anor1
What is Separation?
Separation occurs when a married couple decides to live apart from each other without formally ending their marriage. In a legal context, separation could be informal, where the couple decides on their own to live apart, or it could be a formal judicial separation, where the court grants a separation order but does not dissolve the marriage.
The separation could last for any number of years, but no matter how long it lasts, it does not legally end the marriage. For instance, a couple could live separately for 10 or 20 years, but unless they initiate a formal divorce process, they remain married in the eyes of the law. This was emphasized in the case of Ezeaku v. Okonkwo & Anor where the court ruled that even though the couple had been separated for 17 years, their marriage had not been dissolved.
In this case, the deceased, Mr. I.C. Okonkwo, a Senior Advocate of Nigeria (SAN), married his wife first wife under the customary law and had lived apart from her for 17 years before his death. He did not file a petition for the dissolution of the customary law marriage he contracted with his first wife. The bride price was equally not refunded. He later married a second wife under the customary law marriage. However, before his death, he deposed to an affidavit wherein he stated that the second wife is his lawful wife under native law and custom and he had no other wife except her.
He later died without making a will and his estate was placed under the management of the office of the Administrator General/Public Trustee. The first wife standing on her marriage with the deceased then sought to partake in the distribution of his estate as managed by the public trustee. Based on the said affidavit, the second wife file a suit wherein she sought the interpretation of the said affidavit and claimed some reliefs. The trial court initially held that the 17-year separation implied that the marriage had ended
However, on appeal the Court of Appeal found that their prolonged separation did not terminate the marriage, as there was no evidence that the couple had undergone the legal process required to dissolve their union.
This case highlights the importance of understanding that separation, even if prolonged, is not a substitute for divorce.
What is Divorce?
Divorce is the formal and legal termination of a marriage. Under Nigerian law, divorce can only be obtained through a court order. For statutory marriages (marriages conducted under the Marriage Act), the Matrimonial Causes Act outlines the ground and facts which must be proved before a divorce can be granted, such as adultery and intolerability, conducts not reasonably expected to bear and more. For customary marriages, the dissolution must follow the customs of the community, which often includes the refund of the bride price or by filing a petition for divorce at the customary court.
In Ezeaku v. Okonkwo & Anor, the trial court initially held that the 17-year separation implied that the marriage had ended. However, the Court of Appeal overruled this decision, emphasizing that separation does not automatically dissolve a marriage. This ruling aligns with the provisions of the Matrimonial Causes Act, which requires a petition to be presented to the court for a marriage to be legally dissolved. Simply living apart does not meet this requirement.
The case also highlights the importance of dissolving customary law marriages. This is because even though Mr. Okonkwo had sworn an affidavit declaring that his wife was no longer his legal spouse, the Court of Appeal ruled that this was insufficient to dissolve a customary marriage. Under Nigerian customary law, a marriage can only be dissolved through the return of the bride price, accompanied by other formal customs or by filing a formal petition for the dissolution of the customary law marriage in the customary court. This further shows the difference between separation and divorce under both statutory and customary law.
To explore the legal grounds and timing for filing for divorce, kindly refer to our article on when to file for divorce in Nigeria: a comprehensive guide
Key Differences Between Separation and Divorce
Legal Status: In a separation, the couple remains legally married despite living apart. In a divorce, the marriage is legally dissolved.
Duration: Separation can last indefinitely but it does not change the marital status of the couple. Divorce is a definitive legal end to the marriage.
Court Involvement: A divorce requires a court's involvement to dissolve the marriage legally or the refund of bride price for customary law marriages. On the other hand, separation does not necessarily involve the courts unless it is a judicial or legal separation.
Implications of Separation and Divorce
One of the key takeaways from Ezeaku v. Okonkwo & Anor is that regardless of the length of the separation, couples must follow due legal process if they wish to formally end their marriage. Separation alone does not have the legal force to dissolve a marriage, and any legal assumptions or personal declarations to the contrary, such as the affidavit sworn by Mr. Okonkwo, will not stand in court.
This is an important reminder for couples in Nigeria. If you are separated but have not formally divorced, your marriage remains legally valid. This means that the rights and obligations of marriage, such as inheritance and spousal rights, may still apply. In the case of Mr. Okonkwo, the court found that his wife, despite their 17-year separation, was still legally his spouse until the time of his death.
To explore more on implications and grounds of legal separation, kindly refer to our article on Grounds of Legal Separation in Nigeria: What you need to know.
Conclusion
Separation and divorce are two distinct legal processes in Nigeria, each with its own set of rules and implications. While separation allows a couple to live apart, it does not legally end the marriage. Divorce, on the other hand, is the only legal means of dissolving a marriage, whether it is a statutory marriage under the Matrimonial Causes Act or a customary marriage.
The decision of the Court of Appeal in Ezeaku v. Okonkwo & Anor serves as a legal reminder that separation, no matter how long, cannot automatically translate to divorce unless a formal petition for divorce is filed in court and makes an other to that effect. If you are considering separation or divorce, it is essential to understand the legal distinctions and ensure that you follow the correct procedures to avoid complications in the future.
Footnote
1. ezeaku v. okonkwo & anor (Pp. 27-36 paras. D)
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.