Section 39 of the Matrimonial Causes Act provides for the grounds upon which an action for judicial separation can be instituted.

8/2/20223 min read


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The process used in instituting a legal separation in Nigeria is by a petition filed at any High Court in Nigeria. Section 39 of the Matrimonial Causes Act provides for the grounds upon which an action for judicial separation can be instituted. Judicial separation proceedings follow a similar format to divorce proceedings, but the court does not consider whether the marriage has irretrievably broken down as it does for divorce, as the marriage continues legally.

Sections 15 (2) and 16 (1) of the Matrimonial Causes Act provide for facts as grounds for judicial separation as follows:

  1. That the respondent has wilfully and persistently refused to consummate the marriage

  2. That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with

  3. That since the marriage, the respondent has behaved in a way that the petitioner cannot be reasonably expected to live with the respondent. Such behaviours could include drug addiction, habitual drunkenness, murder, bestiality, sodomy, rape, criminal convictions, and so on

  4. That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition

  5. The petitioner can also state the fact that the parties have lived apart for a period of at least two years immediately the presentation of the petition

  6. The other party has failed to comply with a decree or restitution of conjugal rights made by the High Court for not less than one year.

The goal of the court to grant judicial separation to the aggrieved party is to ponder over their relationship and give it another chance before divorce. Consequently, judicial separation and divorce are not similar. However, judicial separation can be a ground for divorce. The legal separation is different from the dissolution of marriage because the parties cease to have any legal duties or obligation to each other in dissolution of marriage. There is only one decree of judicial separation, where in divorce proceedings a Decree Nisi must be pronounced, before the final Decree Absolute is issued by the Court, legally ending the marriage.


A decree of Judicial Separation relieves the petitioner from the obligation to cohabit with the other party to the marriage when ordered by the Court. While the decree remains in operation, none of the spouses can be in desertion. The decree however does not affect the marriage or the status, right and obligations of the parties to the marriage. The parties remain husband and wife for all other purposes. As an illustration, the wife cannot acquire a separate domicile from the husband during the enforcement of a decree of judicial separation. If one of the parties dies intestate, their property is distributed as though the surviving spouse had died (in the same way as a divorced couple), so they will not be entitled to the rights of a spouse on the intestacy of the deceased. Where there exists a will, this would remain unaffected (unlike the position on divorce). Therefore, if a will leaves property to the surviving spouse, that party would be entitled to it despite the judicial separation.

The Court can make almost all of the same financial orders as upon divorce, except for pension sharing. Consequently, where a husband fails to pay maintenance as ordered by the court to his wife, he would be liable for necessaries supplied for the wife's use. Furthermore, either spouse can marry other people after getting a divorce, but not after a judicial separation. There is no liberty to re-marry, and all other bonds of married life remain in place. Either party to the marriage may die the other party in contract or tort while a decree of judicial separation is in force. The wife is treated as a feme sole, that is, a single woman, whether unmarried, spinster, widow or divorcee, in that case. The court can discharge a decree of judicial separation where the parties voluntarily resume cohabiting. This is done by both parties applying to the court for an order discharging the decree as provided under Section 45 of the Act.

Furthermore, there is no time limit in place, so one can apply for a judicial separation even if they have been married for not up to a year. In judicial separation, both parties will live separately for a specific period of time given by court to save their marriage. During this phase, both the husband and wife will continue the legal status of being in a relationship and yet live separately at the same time.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com


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