Devolution Of Property And Administration Of Estates In Judicial Separation Cases: A Legal Perspective In Nigeria

Introduction

In many instances, individuals are of the mistaken belief that couples who have undergone judicial separation for an extended period revert to the status of being legally single, implying the dissolution of their prior marital bonds. Consequently, it is commonly assumed that their "ex-spouses" forfeit any claim over them, including the right to inherit their estate in the event of death without a will (intestate). This article delves into the legal position surrounding marriages that have been judicially separated and the laws governing the distribution of property in such cases.

Definition of Judicial Separation

Judicial separation is a legal process sanctioned by the court that relieves the parties to a marriage from the duties and responsibilities of living together. However, it is important to note that a decree of judicial separation does not dissolve the marriage.

Under Nigerian law¹, a party to a marriage may file a petition in court for judicial separation based on the same facts and matters that constitute grounds for divorce. However, the court² has highlighted that it is not mandatory for a petition for judicial separation to be filed based on the same facts or grounds as those for divorce³. Examples of facts/matters upon which a party might base a petition for judicial include: (a) that the other spouse has willfully and persistently refused to consummate the marriage; (b) that since the beginning of the marriage, the other spouse has committed adultery and the petitioner finds it intolerable to live with the spouse, etc.

Distinction Between Judicial Separation and Divorce

In the realm of family law, it is imperative to differentiate between judicial separation and divorce, despite their overlapping areas. While both processes involve the intervention of a court, they serve distinct purposes and have far-reaching implications for the parties involved. Divorce refers to the formal dissolution of a marriage by a court of competent jurisdiction, typically the High Court of a State. This terminates the marital rights and responsibilities between the spouses. In contrast, judicial separation allows the couple to remain legally married but terminates cohabitation.

Effects of Judicial Separation

The court⁴ has provided significant insight into the interpretation and implication of Section 41 of the Matrimonial Causes Act by emphasising that a decree of judicial separation does not dissolve a marriage, but rather suspends the obligation of sexual intercourse between parties. The implication is that spouses are not absolved of their other marital duties, responsibilities, and obligations. Furthermore, it is crucial to note that during judicial separation, neither spouse can remarry until the decree is lifted.

Devolution of Property in Judicial Separation

In Nigeria, the administration of estates of the deceased primarily occurs through two distinct legal frameworks: Testate Succession and Intestate Succession. Testate succession refers to the process whereby a will is executed, leading to the distribution of assets according to the deceased's wishes, facilitated through the granting of probate. The individual who passes away leaving such a will is formally known as the 'testator.'

Conversely, intestate succession refers to the legal procedures that govern the distribution of an estate when a person dies without a valid will or fails to leave any will at all. In these situations, the allocation of the deceased's assets is determined by the statutory laws of intestacy, which prescribe the rightful beneficiaries and the way the estate is divided among them. This legal framework ensures that even in the absence of a will, estates are administered and distributed in accordance with established legal guidelines, safeguarding the interests of all parties involved. Letters of administration is issued in this situation.

Section 42 of the Matrimonial Causes Act introduces a unique provision regarding the treatment of property in cases of intestate succession during the pendency of a decree of Judicial Separation. Specifically, if one spouse passes away without a will while a decree of Judicial Separation is still in effect, the surviving spouse is entitled to inherit the deceased spouse's property as if they had outlived them. This provision ensures equitable treatment and protection of the surviving spouse's entitlements despite the marital separation status at the time of death.

The order of priority for individuals who may be granted letters of administration, in cases where a person dies intestate, is as follows⁵;

1. Surviving spouse of the deceased
2. Children of the deceased or the surviving issue of a child who died in the lifetime of the deceased
3. Parents of the deceased
4. Full Siblings of the deceased
5. Half Siblings of the deceased
6. Grandparents of the deceased
7. Uncles and aunts of full blood
8. Uncles and aunts of half blood
9. Creditors of the Deceased
10. Administrator General (where all the preceding fail)

In cases where a spouse passes away without a will (intestate) amidst a judicial separation, the surviving spouse is legally entitled to apply for letters of administration to manage the deceased's estate. However, if the deceased had executed a valid will that excludes the surviving spouse from inheritance, the surviving spouse would not inherit any part of the estate by default. This underscores the importance of estate planning and the legal implications of marital status on inheritance rights.

In conclusion, a surviving spouse of a marriage under the decree of judicial separation is entitled to inherit the property of their deceased partner due to the continued legal status of their marriage at the time of the latter's demise.

Footnotes

1. Section 39 Of The Matrimonial Causes Act

2. Emmanuel V. Funke (2017) LPELR-43251(CA)

3. As outlined in Sections 15(2) and 16(1) of the Matrimonial Causes Act

4. In the case of Ango V. Ango (2021) LPELR-55756(CA)

5. See section 49(1) of the Administration of Estate Law of Lagos State

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.