A Burkinabe woman (T.M.) sought legal separation from her husband (S.Y.) on the grounds of adultery. Legal separation was granted on the grounds that S.Y. had committed adultery (it had been agreed that the marriage would be monogamous). The judge concluded that the sole responsibility for the separation lay with S.Y. Custody of the children was given to T.M. The principle of legal separation is rarely considered by the Burkinabe courts. The judgement provides that legal separation can be requested on the same grounds as divorce, namely mutual consent or the fault of either spouse. The effect of legal separation is to end ‘cohabitation duties.’ However, certain marital duties such as loyalty and support continue. Legal separation allows a woman to formally separate from her husband while leaving the possibility of reconciliation (information provided in academic commentary).
Ouagadougou
Domestic Case Law
T.T. M. contre T.M. Tribunal de grande instance Ouagadougou (1999)
A Burkinabe woman (T.M.) sought divorce from her Chadian husband (T.T.) on the grounds of adultery, abuse and abandonment, she also sought custody of their child. The divorce was granted in favour of T.M. in the court of Ouagadougou. The judge stated that in a divorce case involving spouses of different nationalities the governing law should be that of the common domicile of the spouses. In this case, the last common residence of the spouses was Chad. The Burkinabe judge applied the basic principle of Chadian divorce law that permits divorce for fault attributable to either spouse. The judge stated that the sole responsibility for the divorce lay with T.T. The judge went on to impose Burkinabe law as to custody granting custody of their child to T.M. T.T. was given visitation rights and was required to contribute child support towards the maintenance and education of the children
Affaire B.S. C/ Comission de P Court of Appeal of Burkina Faso at Ouagadougou (2003)
The Court found that the employer had acted inconsistently in offering Mrs. B.S. one-month extensions on her fixed term contract and then ending her contract at a time when she would otherwise have begun maternity leave on the grounds that there were no more project-related funds to cover her employment. This inconsistent behavior supported the finding that Mrs. B.S. had been unfairly dismissed because of pregnancy. Under Article 33 of the Labor Code, the Court awarded damages to Mrs. B.S. for unfair dismissal. Furthermore, the Court faulted the employer for having violated Article 84 of the Labor Code which states that pregnant employees must enjoy maternity benefits under the Caisse Nationale de Sécurité Sociale, including 14 weeks of paid leave, and awarded Mrs. B.S. the maternity benefits that she would have received had she not been unfairly dismissed.
Affaire Zabsonre Asseta C/ Direction Regionale de la Santé de Tenkodogo Court of Appeal of Burkina Faso at Ouagadougou (2001)
Mrs. Z.A. contended that she had been unfairly dismissed for having refused sexual advances by the personnel manager. The Court found that Mrs. Z.A. did not have the obligation to prove that she had been the subject of sexual harassment. Her employer had the burden of proof to show that she had been dismissed fairly. The Court found that Mrs. Z.A. had been dismissed because she did not submit to her personnel manager's sexual advances, and therefore awarded her punitive damages in addition to six months pay.