Judicial separation

Judicial separation is a remedy usually sought after where the parties lack the
grounds of divorce.The grounds for judicial separation are provided for under Section
14 of the Divorce Act, thus a husband or wife may apply by petition to the court for
a judicial separation on the ground of cruelty, adultery, or desertion without
reasonable excuse for two years or upwards, and the court, on being satisfied that the
allegations of the petition are true, and that there is no legal ground why the
application should not be granted, may decree judicial separation accordingly.
Effects of Judicial separation.
Section 15 of the Divorce Act provides in regards to the property owned by a wife
after a decree of judicial separation is granted. The decree also affects the
devolution of the property of spouse attained during judicial separation in case the
spouse dies intestate.
During the period of separation, the wife is taken to be unmarried and therefore is
not liable for any matrimonial offences. In the case where a husband has sexual
intercourse with the wife during the time they are in judicial separation, such an act
can be regarded as rape and the husband is guilty of rape.
In the case of R v Clarke [1949] 2 All ER 448, the defendant was accused of the
rape of his wife and assault. At the time they were separated by virtue of a court
order recently obtained by her. He replied that the offence alleged was not known to
law because of the marriage. It was held that the separation order amounted to a
withdrawal by the wife of the consent implied by the marriage. He could be guilty of
the rape alleged.
Section 16 of the Divorce Act provides that a wife can sue and can be sued in her
own names and her husband shall not be liable in any way because the wife is treated
to be unmarried after judicial separation.
During judicial separation, both the husband and wife are still regarded as husband
and wife and therefore they cannot contract any other marriage because the marriage
will be regarded as null and void. All disabilities that come with the status of
marriage stay in force, for example testifying in court. This concept was upheld in the
case of Moss v Moss [1963] 2 ALL ER 829 the Court held inter alia that, in criminal
cases, subject to certain common law and statutory exceptions, a spouse is
incompetent to give evidence against the other, and the incompetence continues
after a decree absolute for divorce or a decree of nullity (where the marriage
annulled was merely voidable) in respect of matters which arose during the coverture
and applies to the spouses notwithstanding a decree of judicial separation.

Discharge of the decree

Section 17 of the Divorce Act provides that the court can reverse the decree of
separation on application by any party by either showing that the decree was
obtained ex parte or if desertion was the ground of the decree the person’s petition
for reversal may prove that there was reasonable ground for the desertion.
The other ground is showing that the spouses have resumed cohabitation. In Haddon v
Haddon (1887) 18 QBD 778, the court noted that the effect of a resumption of
cohabitation is to put an end to the legal existence of the order and to render it no
longer operative.
In Oram v Oram (1923) 129 LT 159, an application was made by petitioner for
discharge of a decree of judicial separation at the suit of W on the ground of H’s
adultery. W had subsequently petitioned for increased alimony, but during those
proceedings, H had been taken ill and W had nursed him. A reconciliation followed
and the parties lived together until H left W. Petitioner asked that the decree of
judicial separation be discharged. The court was able to discharge a decree of judicial
separation when the parties, by resuming cohabitation, appear to have put an end to
it. The court has an inherent power to discharge an order which has become
ineffective.
Judicial separation can also be discharged where the parties’ agreed period of
separation ends.