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Legal Implications Of Separation

Marriage is a legal contract i.e. it is backed by law. In ordinary terms, it is the coming together of two people to form a family.  Marriage is a contract involving two people and permitting either of them to have exclusive access to themselves and enjoying the full benefits of the contract so they could build a family to say the least. Therefore, marriage is a union two persons, under the backing of the law, and expected to be chaste and lawful. Normally, the society expects marriage to be everlasting, but look around you- that is not always the case.

The occurrences of marriage breakdowns and dissolution seem to be on a high and actually increasing. A marriage contract can be dissolved if there is some sort of impediment that is not in line its (Marriage contract) conditions. Basically, a marriage contract is dissolved if something that would cause its legal backing by the law happens.

There are some specific conditions that the law has provided for a marriage contract. Notably, among this conditions rests on the fact that people who are related cannot be involved in a marriage contract. An existing marriage can be dissolved if it is discovered that the couple cannot continue living with each other because of some disease or that one or both of them are being hostile to the other and scores of other reasons.

Marriage contracts are usually terminated through divorce, dissolution or death. If it is by divorce, which by day happens regularly, the court has the duty of attempting to reconcile them. If all reconciliation efforts fail, then the court has no choice but to finalise the divorce process.

If the divorce does finalise and the marriage gets dissolved, the couple cannot get remarried. This condition is enforced because the law wants couples to take marriage contract very seriously; it is not something they can get in and out of as they please. However, there is an exception to this rule. If the divorced woman gets married to another man and the marriage is consummated, it terminates the repudiations of the previous husband.

Thus, if the new marriage results into divorce too, the woman is free to go back to her previous husband and remarry him. In addition, the law has two provisions for the effects of separation or dissolution of marriage. The first provision is known as the waiting period, also known as "Idda" while the second provision is related to child custody.

The waiting period is a period of time after the divorce process has been initiated. Its implications are that although they have been separated, they cannot go into a new marriage just yet or see anyone. This is used to ascertain the paternity of a child if the woman gets pregnant during this period.

As you can see, it actually protects the woman and the child.

This is why it is essential that the woman should not have any sexual relationship with any men during this period. So, if she gets pregnant during this period, it cannot be questioned that the father of the child is the husband from the dissolved marriage.

The waiting period also has other issues.  If the divorce is revocable, the man can use this time to revoke the divorce and continue the marriage. Normally, the waiting period starts from the time of separation, but if it is suspected that the separated have had any sexual relations, the period will start again from the period they’ve had the relations. When the waiting period starts depends on the cases and reasons for separation. If the case is abandonment, the waiting period starts from the date of abandonment.

If the separation is decided by a judge, the waiting period starts from the day the separation is ruled and if it is death, it starts from the day the husband dies. As I have noted above, the waiting period is used as a provision to ascertain the paternity of the child if it occurs that the woman gets pregnant anytime during the period. As a result, if the marriage has not been consummated before separation the provision does not cover women who have such cases.

In a case whereby the marriage has been consummated but the woman is not pregnant as at then, the couple is gettin g separated, the waiting period will be calculated in the following ways: Three full menstruation cycles for a woman still having menstruation. Three months for a woman who is in menopause but if it happens that her menstruation cycle starts within that period, she has to continue her menstruation for three more cycles.

Three months for a woman who has an irregular menstrual flow or if her menstrual cycle is long. But, if she has a regular cycle that she remembers, the menstrual cycle starts from that one. There is another effect worthy of note in case of marriage dissolution and it is related to child custody.

Marriage is the connection that creates a family foundation and institution and the children conceived in it has to be taken care of by the husband and the wife. But once marriage dissolution occurs, this situation is threatened.  During the process of separation and divorce, one very important question to ask is what will become of the children. This usually results in more issues because both husband and wife have equal rights to the children. Child custody is defined by the law as the keeping, bringing up and taking care of the child without interfering with the right of the guardian.

Custody us usually of two types: Legal custody and physical custody. Legal custody is the situation where the court gives the custody to one parent and physical custody is when the parent can only visit during some specified time; such parent does not have the legal custody. Usually, custody rights are given to the mother but this rule can be amended. The final decision can be only made by a court after considering many factors and the most important factor is what will suit the child’s interest the best.