How to get a separation from your Marriage in Nigeria
A separation isn’t the same as a divorce. Separation means that you are living apart from your spouse, and no longer acting as a married couple with your spouse. Although separation usually means that you and your spouse are no longer living under the same roof. Sometimes, a separated couple will still live in the same household, but will have separate areas for sleeping, and will not share in daily activities together. This sort of arrangement may be necessary because of child-care/access or money issues. Therefore, whether you are considered to be ‘separated’ in this situation will depend on all of the facts.
However, you’re still legally married until you get an order from the court dissolving the marriage. There are broadly 2 types of separation, for the purposes of this discussion we will classify them as regular separation and legal separation.
Regular Separation
There are 2 types – temporary and permanent
Temporary separation
To do this, all the couple need to do is to live apart. People get separated for various reasons, sometimes it might be that they want some time apart to think things through and decide whether a divorce is the best course of action. If you fall into this category and what you need is some time to think things through, then you or your spouse can move out of the matrimonial home and from that moment you are separated. While you’re separated, the same legal rules apply as when you are married, in terms of ownership of property.
Permanent separation
If you fall into the second category and you have already made up your mind about filing for a divorce but for legal reasons you cannot file for one yet (this is mostly the case when you must be separated for 2 years before filing for divorce). This separation is permanent because it is a precursor to a divorce. If you do not intend to reconcile then you should begin to consider how to share assets and debts. Once you are permanently separated then it can be argued that you no longer have any rights to the property of the other spouse. Also, you should not have any sexual intercourse with your spouse after permanent separation, because if you do it can be viewed as a reconciliation and that could have legal ramifications if the reconciliation does not work out and you decide to press on with a divorce. An illustration is this – A couple decide to become permanently separated, they have to wait for 2 years before filing for divorce, 1 year into the separation they have sex and reconcile for a brief 1 month period, it does not work out and they decide to still get a divorce 2 years after the initial separation. Technically, the 2-year separation will stop counting during their reconciliation and will start again afresh from when the reconciliation did not work out.
For both the temporary and permanent separation it always a good idea to consider getting a separation agreement. The Separation agreement basically captures the agreement of the couple regarding financial matters, property, financial contribution for upkeep of the children etc. For example, you will need to decide whether to continue to share a joint bank account (if you have one), create a budget for how the finances will be run, who will stay in the matrimonial home, how expenses for the matrimonial home will be shared, if you have children – details like how their school fees will be paid, who will buy clothes etc for them, who will they stay with, how much access the other spouse will have to them etc.
If you decide to prepare this Agreement, then it is very important that you have this agreement drawn up by a qualified and experienced lawyer. This is because it is likely that the document will be relied upon in court once either party files for divorce later.
Judicial Separation/Legal Separation
This is not so common because the process to complete this is very similar to a divorce, and so the couple decide it is better to just get a divorce than a judicial separation. People decide to file for a judicial separation when there are special circumstances, for instance where there are religious reasons why they should not be legally divorced, or a desire to keep the family together legally for the sake of the children. The main difference between a divorce and a judicial separation is that although the couple no longer have any legal duty to live together or have any legal rights (e.g. conjugal rights), neither spouse can remarry.
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We hope you have found this information helpful. Please note that this information is provided for general informational purposes only and is not intended to be legal advice. No lawyer-client relationship is formed nor should any such relationship be implied. This answer is not intended to substitute for the advice of a qualified lawyer. If you require legal advice, please consult with a qualified lawyer.
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