A judicial separation in Cameroon is a legal process by which a married couple is formally separated, despite being legally married. The separation is granted in the form of a court order. It is different from a divorce as it does not legally end the marriage, meaning neither party can remarry. The court can issue orders on financial matters, property, and child arrangements, similar to those made in a divorce, to provide legal and financial clarity during the separation. Judicial separation in Cameroon is regulated both by the common law and civil law of Cameroon as applicable in the English-Speaking regions and the French Speaking regions of Cameroon respectively.
Key aspects of judicial separation
Legally married but separated: A decree of judicial separation formally recognizes the separation and ends the obligation to live together, but the marriage itself remains intact.
Court-ordered agreements: The court can make legally binding orders on issues like the division of assets, maintenance payments, child custody and access.
Reasons for choosing judicial separation: Couples may opt for this over divorce for religious or moral reasons, or to benefit from certain tax or financial advantages.
Cannot remarry: Because the marriage is not ended, neither party is free to remarry or enter into a civil partnership.
Wills remain in effect: Unlike divorce, judicial separation does not automatically revoke existing wills. A will that leaves property to the other spouse will still be valid unless it is changed.
CONCEPT OF JUDICIAL SEPARATION UNDER THE COMMON LAW JURISDICTION OF CAMEROON
In line with section 17 of the Matrimonial Causes Act 1973, a petition for judicial separation may be presented to the court by either party to a marriage on the ground that any such facts as is mentioned in section 1(2) of the Matrimonial Causes Act 1973 exists to wit;
i. That one of the spouses has committed adultery in the marriage and the other spouse finds the act intolerable to continue in the marriage hence a divorce in Cameroon becomes the only option. The proof of adultery is usually based on circumstantial evidence as it is very remote for acts of adultery to be discovered by the other spouse.
ii. That since the marriage, one of the spouses have behaved in such a way that the other spouse cannot reasonably be expected to continue in the marriage. Hence a divorce in Cameroon becomes the only recourse. The behaviour must be serious enough to qualify under this ground.
iii. Desertion of one of the spouses for a continuous period of two years immediately preceding the presentation of the petition.
iv. That the spouses have lived apart for a continuous period of two years immediately before the petition and the other spouse consent for a divorce in Cameroon.
v. That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
As well as the provision of section 2 of the Act shall apply accordingly for the purposes of a petition for judicial separation alleging any such fact, as they apply in relation to a petition for divorce alleging that fact.
Section 2 of the Matrimonial Causes Act 1973 stipulates that;
- One party to a marriage shall not be entitled to rely on adultery committed by the other if, after it became known to him that the other had committed adultery, the parties have lived again for a period exceeding or periods together exceeding six months,
- Where the parties to a marriage have lived with each other after it became known to one party that the other had committed adultery, but the above provision does not apply, in any proceedings for divorce in which the petitioner relies on that adultery the fact that the parties have lived with each other after that time shall be disregarded in determining whether the petitioner finds it intolerable to live with the respondent.
On a petition for judicial separation it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent, but the court shall not be concerned to consider whether the marriage has broken down irretrievably, and if it is satisfied on the evidence of any such fact as is mentioned in section 1(2) of the Matrimonial Causes Act 1973 as mentioned above, it shall be subject to section 41 of the Matrimonial Causes Act 1973 on the restrictions on decrees for dissolution, annulment or separation affecting children to grant a decree of judicial separation.
CONCEPT OF JUDICIAL SEPARATION UNDER THE CIVIL LAW JURISDICTION OF CAMEROON (SÉPARATION DE CORPS)
In conformity with Article 306 of the Civil Code, in cases where a divorce petition is filed for a specific reason, the spouses may also file for legal separation.
If the husband dies during legal separation proceedings or after a legal separation has been granted, the widow may remarry after three hundred days have elapsed since the order provided for in Article 878 of the Code of Civil Procedure was issued.
It [the legal separation] will be initiated, investigated, and adjudicated in the same manner as any other civil action; however, Articles 236 to 244 will apply: it cannot take place by the mutual consent of the spouses.
The guardian of the legally incapacitated person may, with the authorization of the family council, file the petition and conduct the proceedings for separation.
In conformity with Article 310 of the Civil Code, when the legal separation has lasted three years, the judgment will automatically be converted into a divorce decree upon application by either spouse.
The costs related to this application will be borne entirely by the spouse against whom the legal separation was granted, even if they are the applicant, and equally by each spouse if the legal separation was granted against them due to their mutual fault.
The judgment granting the legal separation, or a subsequent judgment, may prohibit the wife from using her husband's name, or authorize her not to. If the husband has added his wife's name to his own, she may also request that the husband be prohibited from using it.
EFFECTS OF JUDICIAL SEPARATION
Where the court grants a decree of judicial separation, it shall no longer be obligatory for the petitioner to cohabit with the respondent.
If while a decree of judicial separation is in force and the separation is continuing either of the parties dies intestate as respects all or any of his or her real or personal property, the property as respects which he or she died intestate shall devolve as if the other party to the marriage had then been dead.
JUDICIAL SEPARATION v DIVORCE IN CAMEROON
- Marriage Status
- Judicial Separation: Parties remain married
- Divorce: Marriage is Ended
- Ability to Remarry
- Judicial Separation: Parties cannot remarry
- Divorce: Parties can remarry
- Court Orders
- Judicial Separation & Divorce: Can make orders on finances, property, and children
- Wills
- Judicial Separation: Wills remain valid unless changed
- Divorce: Wills are automatically revoked unless specified otherwise