Introduction
The current law relating to separation is based on the law of England and Wales. It has a long history dating back to the 19th century. Thus before 1857 judicial separation (then known as divorce a mensa et thoro) was available in the Ecclesiastical courts but divorce as we know it today was not permitted and no court had jurisdiction to grant it. In rare cases, a marriage could only be terminated by an act of parliament. In 1857 the Matrimonial Causes Act was enacted which, for the first time, permitted dissolution of marriage without abolishing judicial separation as a matrimonial relief. The Matrimonial Causes Ordinance (Cap 364) of what was then colonial Tanganyika was based largely on the English Matrimonial Causes Act of 1857. In 1971 the Law of Marriage Act (Cap 29 R E 2002) repealed the Matrimonial Causes Act (Cap 364) and replaced it with the current provisions discussed below.
Judicial Separation
Judicial separation is best viewed as an alternative to divorce where one of the parties or both are opposed to divorce on religious or other grounds. Section 99, LMA states that “any married person may petition the court for a decree of separation…on the ground that his or her marriage has broken down..” Evidence that the marriage has broken down consists of nine matters.[1]These are contained under section 107 LMA. These matters will be discussed in the next lecture relating to divorce given that they are also the same matters to be proved in a petition for divorce.
Four points need to be stressed here. The first is that judicial separation does not dissolve or terminate a marriage tie. According to s 111 LMA, judicial separation merely relieves the parties of the mutual duty to render each other consortium rights but does not dissolve the marriage tie. Notwithstanding the foregoing, in granting judicial separation the court may make certain orders against the other party such as maintenance.
The second point is that the court has jurisdiction to make financial orders including maintenance and division of assets under s 114 LMA only “when granting or subsequent to the grant of a decree of separation or divorce.” but not otherwise. The law providing for judicial separation may act as an incentive to a party who does not wish to end the marriage but merely wishes to obtain any of these ancillary orders.
The third point is that in a petition for judicial separation the court is not expected to make the finding that the marriage has broken down irreparably. In other words, it is enough for the petitioner merely to show the existence of any one of the matters listed under s 107 LMA and the court should grant the separation order without considering and determining whether or not the marriage has broken down irreparably as required under s 110(1)(a)LMA.
The fourth point is that judicial separation has a long history under English law and dates back to the time in England when divorce was very difficult to obtain and couples who could not live together or could not have their marriage annulled, usually settled for a judicial separation as a form of de facto divorce.
Voluntary Separation
Section 67 of the Law of Marriage Act states that spouses may enter into a written
agreement to provide for their voluntary separation along with ancillary matters such as maintenance, division of matrimonial property, and the upbringing of the minor children of the marriage, if any. The agreement must be in writing and dully signed by both parties. Such an agreement is valid and enforceable provided that the court shall have power alter such an agreement on the application of either party “at any time and from time to time.” The court also has power to set aside the agreement where it is satisfied either that there has been a material change in the circumstances of the parties or where such an agreement is not in the best interests of the couple’s infant children.
The underlying principle here is that it is not the policy of the law to compel parties to live together if they do not wish to do so. Indeed, this shown by section 140 (LMA) which states that the court shall have no power to compel a wife to reside with the her husband nor a husband to reside with his wife. But in case one of the parties believes he or she has been deserted by the other, he or she may refer the matter to the Marriage Conciliatory Board. In effect this is another way of saying, as will be noted in the next lecture, that desertion of one spouse by the other constitutes a legal ground for judicial separation or divorce.
The final point to note is that although the law permits parties to separate by a private agreement, it retains its protective role. The law will intervene at the invitation of one of the parties to redress any injustice or unfairness in the agreement. The court will also intervene where it is satisfied that the circumstances under which the agreement was made have substantially changed. The court will also intervene where it is satisfied that the terms of the agreement are not in the best interest of the minor children of the marriage.[2]
Conclusion.
The law relating to separation could be viewed as a half-way house between staying married and divorcing. While it enables the parties to achieve nearly all the remedies available to a divorced couple, it leaves the marriage legally alive thus keeping open the chances for parties to reconcile. Where the court is invited to intervene, it may grant judicial separation. But parties may also agree in writing and their agreement has the same effect as a court ordered separation. In either case the court may alter the terms of the agreement either because the circumstances of the parties have materially changed or it is not in the best interests of the minor children. Although for troubled marriages divorce is now a more popular remedy there are those who prefer separation out of strategic or religious considerations. Hence, law students must continue to pay attention to this aspect of family law.
Citation
[1] As will be noted below the use of “facts” instead of offences in most jurisdictions is part the movement away from a fault based divorce to a no-fault divorce.
[2] See section 67 LMA.
