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Personal Finance

Couples should consider judicial separation first before divorcing

Most of the disputes that occur in marriage are avoidable and can be resolved. PHOTO | FILE
Most of the disputes that occur in marriage are avoidable and can be resolved. PHOTO | FILE 

Many couples are quick to rush for divorce when things go wrong in their marriage. Most of the disputes that occur in marriage are avoidable or can be resolved.

However, many are quick to opt to terminate their marriages when the marriage starts breaking down.

The grounds of divorce include the following; where there has been adultery, cruelty, and desertion or where the marriage has irretrievably broken down.

Cruelty can include things like physical, psychological and emotional abuse. Under the Protection Against Domestic Violence Act, cruelty has been defined in detail.

A divorce petition is initiated in court by the aggrieved party and must state the grounds on which divorce is being sought otherwise the petition fails.

Under law, you cannot just divorce because you feel like it; you have to show the court that there are sufficient grounds upon which you are making the petition. Once the petition is heard and determined then an order is made nullifying the marriage completely.

Other than the issue of terminating the marriage, some of the other things the court may consider in a divorce petition include issues such as division of matrimonial property and issues to do with custody of children.

A judicial separation is an alternative to divorce. It has some elements of a divorce however slightly differs from a divorce. It is initiated by the petitioner and as its name suggests, it is also filed in court.

The difference between a divorce and a judicial separation is that while a divorce totally terminates the marriage, an order for judicial separation does not terminate the marriage.

However just as in the case of divorce, a petitioner in a judicial separation cause must show sufficient grounds.

These grounds include adultery, cruelty, desertion and where the marriage has completely broken down. Under a judicial separation, the parties remain married however they live apart.

Sober decision

There are several reasons why a couple may opt for judicial separation as opposed to a divorce: Where the parties are not very sure if they want to divorce each other.

A judicial separation allows the parties to live apart separately for a while and reflect. It gives sufficient time for the parties to make a sober decision as to the way forward in their marriage.

Where there is hope of reconciliation. A judicial separation allows the parties to later on reconcile. A divorce is however final.

Once a divorce is granted by the court, if the parties wish to reconcile in a marriage, then it means they have to contract a second marriage. A judicial separation allows the parties to reconcile their differences as they still remain married to each other.

A judicial separation is more conciliatory than a divorce which is very adversarial. There is limited room for negotiating in a divorce proceeding.

By the time parties agree to go for a divorce, it means things are so bad between them that often time parties take on a win/lose stand.

Many times property and children are used as weapons to frustrate the other party. A judicial separation allows the parties draft a settlement agreement, which is then filed in court. For example the parties agree on property division and child custody.

There are many people whose religious beliefs do not allow them to divorce. For such persons then a judicial separation provides a reprieve against a bad marriage.

While the Marriage Act says little about judicial separation, it can still be applied. Section 14 of the Act allows parties to a civil marriage apply for a judicial separation for one year.

Under Section 64 of the same law, parties to a marriage may refer their dispute to reconciliation and mediation. The court can also order the parties to mediate their difference and file an agreement in court.

Once the period of judicial separation is over, the parties can decide whether to reconcile or go for a final divorce.

Mputhia is the founder of C Mputhia Advocates. [email protected]

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