The decision to
write on this was influenced by the argument between some people while watching
the state burial of the former South African president Dr. Nelson Mandela, a
global symbol of liberty, hope, reconciliation and above all forgiveness.
If you watched
the state burial you will see that Dr. Nelson Mandela’s ex-wife is no doubt an
important part of his life and almost every one opportune to speak at the
burial emphasized this by chanting her praises. This raised a lot of questions
as to what transpired between them and why would a man who preached and
practiced forgiveness never forgave his wife.
It is important
to give a brief history about the life and relationship between the late Madiba
and Winnie even though the history is not what this discussion is based on, but
this will not also be complete without it and because of those who know little or
nothing about the courageous, bold and heroic man. We shall deviate from the
topic a little.
Nelson and
Winnie were married for 38 years which include the 27 years Nelson spent in
prison. Their marriage ended in March 19, 1996 in divorce but before then they were
earlier separated for two years.
There are two
major grounds that led to their divorce, Winnie was politically and morally
accountable for gross violation of human rights and also adultery when and
after Dr. Nelson was in prison.
Now back to our
discussion, you must have read from the brief history that they were earlier
separated for two years before the divorce.
There are other
forms of dissolution of marriage apart from divorce. A decree of dissolution of
marriage is one of the most applied for in the matrimonial relief. They are
divorce (this has been treated earlier on this blog, please read up ) judicial separation(this is mostly applied
for while divorce is pending) and restitution of conjugal rights.
Judicial
separation is a matrimonial relief which is in a lot of ways similar to
dissolution of marriage. An order of judicial separation is applied for where
the respondent has willfully and persistent refused to consummate with the
petitioner, commit adultery, irrational behavior (emotional and physical
assault) desertion which are also grounds provided for under the section 15(2)
of the Matrimonial Causes ACT and major ground for divorce.
The major
difference between divorce and judicial separation is that such order does not
affect the marriage or status, rights and obligations of parties to the
marriage.
The consequences
of an order of judicial separation are;
(a)
It relieves the petitioner of
the duty to cohabit with the party whilst the decree lasts.
(b)
While the decree lasts the parties
can sue each other in contract and tort
(this won’t have been possible because the general rule is that husband and
wife are seen as one in law in respect of civil matters)
(c)
Where either of the parties
dies intestate whilst the decree is in operation the parties shall devolve as
if the other party had survived the other party to the marriage.
The existence of judicial separation shall not prevent either party
from bringing petition for dissolution of marriage. Also where the parties
voluntarily resume cohabitation and both consent to the order, the court may
discharge them of judicial separation.
Restitution of conjugal rights, this is made on the ground that
parties to the marriage whether or not at any time they cohabited or are not
cohabiting and without just cause the party against whom the order is sought
refuses to cohabit and render conjugal rights to the petitioner.
Thank you.
Oyenike Alliyu-Adebiyi LLB(hons)BL
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