24/06/2026
SEPARATION IS NOT DIVORCE; COHABITATION IS NOT MARRIAGE
On April 26, 2020, Nigeria lost Dr. Tosin Ajayi, founder and Chief Executive Officer of First Foundation Hospital, one of the country’s most respected private healthcare institutions. His passing was mourned nationally. But within weeks, mourning gave way to litigation.
What followed was not a dispute over medical legacy, but over a much older, unresolved matter: marriage. For the next five years, two women, their children, and the entire Ajayi estate were locked in court. The core question was deceptively simple: Who, under Nigerian law, was the legal wife?
The answer, delivered on March 13, 2026 by Justice Oluwayoyin Odusanya of the Lagos High Court, has now become a national case study. It is a verdict that restates, with painful clarity, a principle many Nigerians misunderstand: Separation is not divorce. Cohabitation is not marriage. And sentiment has no weight in probate court.
The Facts: A Marriage Never Legally Ended
Dr. Ajayi had separated from his first wife many years before his death. They lived apart. They built separate lives. To neighbors, friends, and even to Dr. Ajayi himself, the marriage was “over.” But no petition for dissolution was ever filed. No decree nisi was granted. No decree absolute was issued under the Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria 2004.
Believing the union was effectively dead, Dr. Ajayi entered into another relationship and later married a second woman. He had children with her. She managed his home. She was presented socially as “Mrs. Ajayi.” For all practical purposes, she was the wife.
When Dr. Ajayi died intestate — without a will — both women came forward. The first wife returned to claim her position as legal spouse and administrator of the estate. The second woman countered, “Over my dead body. You abandoned him for years and only reappeared after his death to claim what you left behind.”
The Judgment: What the Court Actually Decided
After five years of evidence, arguments, and legal submissions, Justice Odusanya delivered a judgment that dismantled three common myths:
Myth 1: “Long separation ends marriage.”
The court held: _“Separation, regardless of how long it lasts, does not automatically dissolve a legally valid marriage under the Act.”_ Under Section 15 of the Matrimonial Causes Act, only a court can dissolve a statutory marriage. Separation may prove “irretrievable breakdown,” but it is the judge’s decree, not the passage of time, that terminates the marriage.
Myth 2: “A registry wedding cures everything.”
Evidence showed the second woman was herself legally married to Mr. Davies at the time she allegedly married Dr. Ajayi. The court ruled that her purported marriage to Dr. Ajayi was void ab initio — void from the beginning. Section 47 of the Matrimonial Causes Act states that a marriage is void if either party is already lawfully married. Nigerian statutory marriage is strictly monogamous: one man, one woman. No exceptions.
Myth 3: “Children from the second union will protect her rights.”
The court affirmed that while all children of Dr. Ajayi, whether born within or outside the statutory marriage, are entitled to share in the remaining two-thirds of the estate under the Administration of Estates Law, the second woman herself had no spousal rights. She could not apply for Letters of Administration. She was not entitled to the statutory one-third share reserved for a legal spouse.
Final Orders: The first wife was declared the only legally recognized spouse. She is entitled to one-third of Dr. Ajayi’s personal estate and is the sole person entitled to apply for Letters of Administration. The rest of the estate will be divided among all of Dr. Ajayi’s children.
Why This Matters Beyond One Family:
This judgment is not about Dr. Ajayi alone. It exposes a systemic legal blind spot in Nigerian society:
A. The Monogamy Rule is Absolute
Unlike customary law, which permits polygamy, statutory marriage under the Act is monogamous. A man cannot be “traditionally married” and then “add” a statutory wife. A woman cannot be “customarily married” and then “upgrade” to a registry wedding while the first marriage subsists. The second ceremony is legally meaningless.
B. Customary Divorce ≠ Statutory Divorce
Many Nigerians believe that “returning the bride price” or “family settlement” ends a marriage. For customary marriages, that is correct. But if you later contract a statutory marriage, you must also obtain a statutory divorce. The two systems do not automatically talk to each other. Failing to divorce under the Act means you remain married in the eyes of every bank, court, and probate registry in Nigeria.
C. Intestacy Punishes Poor Planning.
Dr. Ajayi died without a will. Under Lagos State’s Administration of Estates Law, an intestate estate is distributed by formula: 1/3 to the legal spouse, 2/3 to the children. A well-drafted will could have made specific provisions for the second woman and her children, reducing litigation. Without a will, the law, not the deceased’s intentions, decides.
The Hard Lesson for Women — and for Men
To women: This case vindicates every warning about “marrying a married man under the Act.” No matter how long you cohabit, no matter how many children you bear, no matter how “official” your wedding photos look, if his first marriage was never dissolved by a court, you are not a wife in law. You are a partner. A companion. A mother of his children. But not a spouse with inheritance rights. When death comes, the court will be clinical. “Ignorance of the law is no excuse” will sound less like a maxim and more like a sentence.
To men: You cannot “move on” emotionally and legally at different speeds. If your marriage has broken down, do the hard work of obtaining a decree absolute. Until then, every new relationship you formalize is built on legal quicksand. You risk leaving your children and your partner with nothing but litigation.
Three Protective Steps Everyone Must Take Today:
A. Verify Before You Marry: If a suitor says “I am divorced,” do not accept separation agreements or affidavits. Insist on seeing a certified true copy of the Decree Absolute. It is the only document that proves the first marriage is dead in law.
B. Dissolve Properly Before You Remarry: If you are customarily married and want a registry wedding, first dissolve the customary marriage under native law and custom, obtain evidence of that dissolution, then proceed. If you are statutorily married and want out, file a petition. Separation for 20 years still requires a court order.
C. Write a Will, No Matter Your Age or Status: A will is not for “old people.” It is for anyone with assets and dependents. A will allows you to make specific provisions for all your children and even for long-term partners, within the limits of the law. Without it, the state’s formula overrides your wishes.
Let the Courtroom Be Your Teacher, Not Your Destination
Dr. Tosin Ajayi’s children will inherit. His hospital legacy continues. But the woman he lived with for years will not inherit as a spouse. That is not cruelty. That is the law.
Let this editorial serve as the warning that casual advice could not deliver. Before you say “I do,” ensure his “I do” from the past has been legally converted to “I don’t” by a court of competent jurisdiction.
In estate matters, the courtroom does not interpret intentions. It interprets documents. And the only document that ends a marriage is a Decree Absolute. Everything else is just separation.
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