“Failure to obtain a formal divorce before remarrying does not just create moral complexity. It creates legal chaos, particularly in succession matters.”
In Nigeria, more often than not, couples who have gone their separate ways often do not permanently end their marriages for various reasons. Some may be due to religion or faith, fear of social stigmatisation, or hope of future reconciliation.
Truth is whether couples separate, maintain distance or silence, it still not a proper divorce. Only a court can legally separate a couple joined in a civil marriage.
Now, the consequences are far-reaching, especially on matters of validity of remarriage, inheritance, and succession. Many long and bitter inheritance cases are built along these lines.
Let’s examine the inheritance consequences that many ignore.
A recurring legal problem arises where a man separates from his wife without obtaining a formal divorce, remarries, builds another family, and then dies testate. When probate proceedings begin, the “former” wife resurfaces to challenge the Will.
The question then becomes:
Can she succeed?
Let us examine the law
Let us say Ade had a civil marriage with Folu. The union produced two children. Years later, they separated but never formally dissolved the marriage in court.
Ade then married Kemi and had two children with her.
Ade subsequently dies testate (leaving a Will). At probate, Folu challenges the Will in court.
Does she have the right?
Can she succeed?
Yes, to both questions. Separation never terminates a civil marriage. Only a High Court can dissolve it, through a Decree Absolute.
A civil marriage does not naturally end by mere physical separation, desertion, church pronouncement, mutual agreement, or cultural rites.
Until a court grants a divorce, the marriage remains legally binding.
Therefore, if Ade never obtained a Decree Absolute, Folu remains his lawful wife in the eyes of the law.
The Legal Status Of The Second Marriage
If Ade had another civil marriage with Kemi, while his marriage to Folu was still subsisting, that second marriage is void for bigamy.
A void marriage confers no spousal rights.
However, the children of that union remain legitimate and so entitled to inheritance.
Inheritance and succession laws protect children from the legal errors of their parents.
Can Folu Challenge The Will?
Yes. She has locus standi to do so.
If she remains the lawful wife, her exclusion could weigh heavily in judicial consideration.
Her likelihood of success increases significantly if:
No divorce occurred, and…
She was excluded or inadequately provided for.
From this scenario, we see how gravely a mere separation without divorce can leave in its wake a whole lot of mess.
In a nutshell;
•Separation has no legal effect on marital status.
•A spouse who has been separated for decades remains legally married until a court decree that dissolves it.
•It may affect rights under inheritance.
If Ade had died without a Will (intestate)…
Folu would automatically qualify as a surviving spouse…
She would inherit under intestacy, and even where there is a Will, a lawful spouse may challenge it, and the court may make an order for reasonable provisions from the estate of the deceased.
A remarriage during a subsisting statutory marriage:
Is void.
It often creates succession disputes and exposes the estate to litigation. It also complicates probate proceedings.
The courts will generally seek to:
Uphold validly executed Wills.
Protect lawful spouses.
Protect children.
Prevent manifest injustice.
Where a man abandons his wife without a formal divorce and attempts to exclude her entirely from his estate, courts are often sympathetic to the lawful spouse, particularly where minor children are involved.
This scenario reinforces the truth that separation ends cohabitation and not marriage.
Let me sound a note of gentle caution:
Many individuals assume that once emotional ties are severed, legal ties are too…
They are not.
Failure to obtain a formal divorce before remarrying does not just create moral complexity. It creates legal chaos, particularly in succession matters.
