The management of cohabitation of separated spouses under Rwandan law

Abstract

This paper examines effects of cohabitation of judicially separated spouses who, by the court’s decision that granted them legal separation, are exempted from the duty of cohabitation but retain all other duties arising from marriage. Such cohabitation made during the period of judicial separation can have multiple consequences and greatly affects the woman and the child born from it. Under Rwandan law, the legal nature of cohabitation between judicially separated spouses is not clear. In addition, in case a child is born from such cohabitation, his or her status is not clearly determined, and he or she can be an illegitimate or legitimate child. Moreover, the wife who got pregnant during legal separation finds herself in precarious conditions and it is up to her to prove instant cohabitation she had with her legally separated husband. In order to fix these issues, this paper recommends that the proved cohabitation be considered asreconciliation of judicially separated spouses which entails resumption of life together and termination of divorce proceedings that could result from legal separation. It is also recommended that the resumption of cohabitation be formalized by a reconciliation agreement enforceable erga omnes. Finally, the paper recommends revisions of the Rwandan family law to include legal provisions that can assist to solve issues resulting from cohabitation of spouses undertaken during judicial separation.