The law deems marriage as sacred and thus, upholds the sanctity and sanity of marriage at all cost and has created laws to see to that.
Reading closely, you will see that a couple who rightly gave consent to be married cannot walk up to the court registry to make an application for the dissolution of the marriage for just any reason.
One fact that a petitioner must successfully prove before the application for a dissolution of marriage can succeed is to satisfy the court that the marriage has broken down irretrievably. In proving that the marriage has broken down irretrievably, it must be within the ambit of the law and what the law has recognised.
The object of this article is to appraise the concept of judicial or legal separation of marriage in Nigeria. To my mind, the concept of judicial separation should first be explored before a judicial dissolution of marriage is granted.
It will not be out of place to state that the institution of marriage under matrimonial laws is a union that imposes upon each party several marital obligations or duties which may collectively be referred to as consortium. Some of these imposed duties or corollaries of marriage and which the law holds sacred include the right to live together as husband and wife, the right to have the marriage consummated, sexual fidelity, and mutual defence amongst others. The law provides remedies in certain cases where either the spouse fails or refuses to fulfil one or more of these marital obligations.
For instance, if a party to a marriage refuses to consummate the marriage or commits adultery, the other party may present a petition under Section 15 of the Matrimonial Causes Act Cap M7 Laws of the Federation of Nigeria 2004 for dissolution of the marriage. It follows, therefore, that after a marriage has been validly contracted, if any of the parties to the marriage without reasonable excuse refuses to cohabit with and render conjugal rights to the other, then the aggrieved party has the legal right to file a petition for a decree of restitution of conjugal rights. This matrimonial remedy is provided for in Section 47 of the Matrimonial Causes Act. Such that, a Petitioner may seek divorce because the Respondent has refused to consummate the Marriage. To everyone else, Consummation of Marriage, being a ground for dissolution of marriage may be funny and highly laughable, but the law does not laugh this.
Similarly, the law also knows that it takes a living being to make a marriage work. And because the Grundnorm (the Constitution) explicitly stated our Right to Life in Chapter IV of the Constitution, the law will stretch out its hands to ensure and protect our Right to Life as enshrined in the Constitution. Not even marriage which is deemed sacred can be used as an instrument to take lives.
However, apart from the dissolution of marriage, when need be there are other reliefs that the court can grant when a marriage is hitting a blockade. These other reliefs include, in no other of priority;
1. Judicial Separation
A Judicial or Legal Separation is one of the decrees a court can pronounce in matrimonial causes, and a petition for a legal separation can be instituted under the Matrimonial Causes Act 1970. It is an alternative option to divorce. Where an order of legal separation (or judicial separation) is granted, the couple ceases to cohabit; they live apart but remain legally married to each other. In a judicial separation, the couples are estopped from remarrying, because such a separation does not affect the rights, status and obligations of the parties to the existing marriage.
A legal separation is a court-ordered arrangement whereby a married couple lives apart, leading separate lives. A legal separation is a popular alternative to a divorce when the parties are unsure of the state of their marriage but want to establish financial boundaries and responsibilities, such as separation of assets, custody of dependents, and child support.
How a Legal Separation Works
Although the reasons for seeking a legal separation vary, there are some common ones worth noting. Some religions prohibit married couples from divorcing and a legal separation grants most of the benefits of a divorce without compromising religious tenets. Also, those unsure of their marital future may opt for a legal separation, hoping for a reconciliation. Couples with younger children often cite that a legal separation is more ideal for their children than a divorce. Although the parents function as a separate unit, the family may remain together, maintaining stability and order, for the most part. Another reason for opting for this arrangement is to retain health and retirement benefits.
A legal separation is less expensive compared to a divorce. In this form of relief, the couple is not together for sometimes but their separation does not vitiate their marriage. For those who want a divorce, a legal separation is required in some states before a judge will grant one. This form of relief is temporal while the dissolution of marriage is permanent.
2. Declaration of nullity of a void or voidable marriage:
A decree of nullity is a declaration by a court that your marriage never existed in the eyes of the law. It means that no valid marriage exists between you and your partner.
Nullity (or annulment) is not the same as divorce. Divorce is a declaration of ending a valid marriage. Nullity is a declaration that a valid marriage never existed.
Two types of marriages may be annulled:
a. Void marriages
b. Voidable marriages
If your marriage is void, it is regarded as never having taken place.
If your marriage is voidable, it is considered to be a valid marriage until a decree of annulment is issued.
3. Restitution of Conjugal Rights:
Section 47 of the Matrimonial Causes Act 2004 provides as follows:
A petition under this Act by a party to a marriage for a decree of restitution of conjugal rights may be based on the fact that the parties to the marriage, whether or not they have at any time cohabited, are not cohabiting and that, without just cause or excuse the party against whom the decree is sought refuses to cohabit with and render conjugal rights to the petitioner.
4. Jactitation of Marriage:
This relief, though archaic but is still valid. The word jactitate is derived from the Latin word “jactare,” which means to “throw, toss about, discuss, or boast of.” In English law, jactitation of marriage is the untruthful boasting of one party that s/he is married to another. From at least the late fifteenth century onwards, the English ecclesiastical courts began to entertain actions against those who made such boasts.