Differences Between Judicial Separation And Divorce: Judicial separation and dissolution of marriage otherwise known as divorce are amongst others, matrimonial causes or reliefs. They are matrimonial causes in the sense that they only arise in relation to an existing marriage. Judicial separation is an order of a court of competent jurisdiction relieving parties to a marriage from cohabitation and some other matrimonial duties and obligations without terminating the marriage.
In Nigeria, it is the High Court that has the jurisdiction to make such orders. Another form of judicial separation is separation agreement or separation by deed. The court recognizes that parties to a statutory marriage can by agreement suspend some of their marital rights and obligation.
Thus, when there is separation by agreement, it has the same effect as an order of judicial separation by the court.
On the other hand, dissolution of marriage alternatively known as divorce implies termination. It is the permanent separation of parties to a marriage by a court of competent jurisdiction. Upon the grant of divorce, the marriage in question ceases to exist. Judicial separation is a relief obtainable by parties to a statutory marriage.
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Similarities Between Judicial Separation And Divorce
Judicial separation and divorce have some similarities. One is that both reliefs put an existing marriage to a halt, although the extent of their effects differs. The right to institute a petition is not restrictive to a party. Any aggrieved party to the marriage has the locus standi to bring any of the petitions. Both orders suspend cohabitation, right of sexual access of couples to each other, and some other matrimonial rights and obligations.
Another striking similarity is that the grounds on which a petitioner can institute petition for dissolution of marriage are the same as the grounds on which petition for judicial separation can be based. Therefore, a petitioner can base his fact on one or more of the facts which constitutes a ground for the proof of irretrievable breakdown of marriage.
The facts constituting grounds are; adultery, desertion, unreasonable behaviour, separation for two years without objecting to the order of divorce being granted, living apart for three years, refusal to comply with the order of restitution of conjugal rights ordered by the court, absenteeism of any of the parties warranting reasonable presumption of death.
Upon the grant of the order of divorce and judicial separation, the implied consent of sexual intercourse between the parties is suspended. Therefore, having sexual intercourse with the spouse without consent first obtained may amount to rape.
Another similarity is that for both orders, either of the parties to the marriage can bring an action under contract or tort against the other party. Also for both others, the court can order for maintenance of any of the parties by the order. The court can also make orders pertaining to the custody and maintenance of the children of the marriage.
The court before granting a divorce order is required to put into consideration as to whether the facts forming the ground or grounds of the petition has been condoned or was connived by the petitioner. This constitutes a bar to the decree of dissolution of marriage. This bar applies equally and to the same extent in a judicial separation.
Another similarity is that where the fact constituting the ground of the petition for dissolution is adultery, the adulterer can be joined in the petition as co-respondent for the purpose of claiming damages. This is applicable to the same extent in a petition for judicial separation.
Differences Between Judicial Separation and Divorce
1. The effect of an order of judicial separation is not permanent. It does not terminate the marriage. It merely suspends certain rights and obligation of parties to the marriage towards each other, particularly cohabitation. The order of judicial separation can therefore be discharged.
This is done by applying to the court to declare the order as discharged, where the parties have voluntarily resumed cohabitation or have consented to the order being granted. On the other hand, an order of dissolution is permanent. The order completely brings an existing marriage to an end. The order when granted cannot be reversed or discharged; the court becomes functus officio.
2. Because an order of divorce terminates the marriage in toto, parties to the dissolved marriage are free to remarry. On the other hand, an order of judicial separation merely suspends an existing marriage temporary.
Therefore, the marriage is still in existence; parties cannot remarry whether under native law or statute as long as the statutory marriage is subsisting. Doing so constitutes the offence of bigamy.
3. An order of judicial separation once granted, is complete. Nothing more is needed to be done asides complying with the order and the incidences. On the side of divorce however, the court first makes an order of Decree Nisi.
After the order of Decree Nisi is granted, few months (usually three months) is given and after that, a Decree Absolute will be granted. It is the Decree Absolute that formally and finally makes the dissolution order permanent. At that point the parties can g o ahead and remarry without it constituting the offence of bigamy.
4. A petitioner who institutes a petition for judicial separation is not precluded from further instituting a petition for dissolution, and when an order for judicial separation has been granted, divorce order can as well further be sought and granted.
On the other hand, where a divorce order has been granted, it follows logically and practically that the necessity of an order of judicial separation simpliciter is overridden.
5. Judicial separation can qualify as an act of the parties. Here, the parties may by agreement request for an order of judicial separation to be granted. They can also achieve same by preparing a separation deed. In a judicial separation therefore, the party or parties need not prove extensively the existence of the alleged facts which forms a ground for the petition.
On the other hand, a divorce order is an order carefully considered by the court before being granted. The court honours the sanctity of marriage. Order of dissolution is not granted at will; it must be proved to the satisfaction of the court that the marriage in question has broken down irretrievably. The fact or facts alleged must be specifically proved.
6. Where a divorce order is granted, the marriage is completely terminated. Therefore, neither of the parties are by law entitled to one other’s intestate succession.
On the side of judicial separation; the marriage is still in existence. Therefore, upon death of either of the parties intestate, the property of the deceased can devolve on the other.
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7. Where an order of judicial separation is granted, the parties to the marriage reserves the right to exercise any right exercisable jointly which has arisen from the marriage. Under an order of divorce however, such joint rights ceases to be exercisable.
This however does not affect the custody and or maintenance of the children of the marriage where joint orders in made to that effect.
8. Except where exceptional hardship or depravity would be caused to a party to the marriage and with leave of court, a petition for dissolution cannot be instituted within two years of the existence of the marriage.
This means that a petition for dissolution can only be instituted after two years of the existence of the marriage has elapsed. This does not apply in judicial separation. Petition for judicial separation can be instituted in the first year of the marriage.
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Judicial separation and divorce are both matrimonial causes and reliefs. Both have striking similarities, yet, they are not without clear distinctions. Divorce however is a more serious cause. For certain reasons such as religion, severity of cause, aftermath effects, etc, a petitioner may opt in for judicial separation instead of divorce. Judicial separation offers opportunity for reconciliation and amendments.
Similarly, the two – three months given after Decree Nisi before the grant of Decree Absolute has been philosophized to be an opportunity for reconciliation as well. Both causes are similar on the surface but distinct in their depth and effects.
Edeh Samuel Chukwuemeka, ACMC, is a lawyer and a certified mediator/conciliator in Nigeria. He is also a developer with knowledge in various programming languages. Samuel is determined to leverage his skills in technology, SEO, and legal practice to revolutionize the legal profession worldwide by creating web and mobile applications that simplify legal research. Sam is also passionate about educating and providing valuable information to people.