Divorce
The concept of separation is legally distinct from divorce under Nigerian law, some Lagos-based lawyers have said.
The lawyers, who spoke with the News Agency of Nigeria (NAN), also drew a distinction between marriage and cohabitation, saying neither pair of concepts should be used interchangeably.
They explained that while separated couples live apart, separation does not dissolve a marriage, unlike divorce, which legally terminates a marriage through a court order.
The Ogun Coordinator of the African Women Lawyers Association (AWLA), Mrs Ebere Obiora, said divorce referred to the dissolution of a marriage by a court of competent jurisdiction, while separation simply meant spouses lived apart.
According to her, prolonged separation does not amount to divorce unless a court formally dissolves the marriage.
She cited the recent court decision involving former beauty queen Helen Prest and the estate of the late Dr Tosin Ajayi, where the court held that the deceased’s marriage to his legal wife remained valid despite about 25 years of separation.
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According to Obiora, the court affirmed the legal wife’s right to administer the estate because the marriage had never been dissolved.
She also noted that the court ruled that long years of cohabitation did not confer the status of a legal wife on another woman who had lived with the deceased.
Obiora said that under the Marriage Act, cohabitation alone did not create a valid marriage, although children born from such relationships were recognised by law.
Also speaking, Mr Anthony Makolo, Founder of the Makolo Anthony Empowerment Foundation (MAEF), said a valid marriage under customary law required payment of bride price, while statutory marriages must comply with the provisions of the Marriage Act.
According to him, couples who merely live together, regardless of the duration of their relationship or whether they have children, are not regarded as legally married.
Makolo further explained that judicial separation was a court order permitting spouses to live apart for a period without dissolving their marriage, often to allow tensions in troubled unions to subside.
He said many people mistakenly regarded long periods of separation as divorce, whereas the law continued to recognise such couples as married until a court dissolved the union.
Mrs Adaobi Fortune, a member of the International Federation of Women Lawyers, also said the law clearly distinguished marriage from cohabitation, as well as divorce from judicial separation.
She said the Matrimonial Causes Act regulated marriages and their dissolution, adding that cohabitation did not confer marital status irrespective of its duration.
Fortune added that although children could be born from cohabitation, their birth did not validate the relationship as a marriage.
She explained that divorce became effective only upon a court order, noting that customary marriages were dissolved by customary courts, while statutory marriages were dissolved by the High Court. (NAN)
