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Legal separation (sometimesjudicial separation,separate maintenance,divorcea mensa et thoro, ordivorce from bed-and-board) is a legal process by which a married couple may formalize ade factoseparation while remaining legally married. A legal separation is granted in the form of acourt order. In cases where children are involved, a court order of legal separation often makeschild custody arrangements, specifyingsole custody orshared parenting, as well aschild support.[1] Some couples obtain a legal separation as an alternative to adivorce, based on moral or religious objections to divorce.[2]
Legal separation does not automatically lead to divorce. The couple mightreconcile, in which case they do not have to do anything in order to continue their marriage.[3][4]
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A mensa et thoro is alegal Latin phrase which means "from table and bed", often translated as "from bed and board", in which "board" is a word for "table". Separationa mensa et thoro is essentially a separation that is sanctioned by acourt order, meaning that the spouses may legally live apart, but they are still legally married. The legitimacy of any future child born to the couple remains intact, and the spouses may not legally remarry. This type of separation allows the couple to live apart without concerns about being taken to court for "desertion". (In some jurisdictions, provable "desertion" is legal grounds for a divorce.)
There are several reasons why a couple might seeka mensa et thoro separation. In some legal jurisdictions, including certain countries, it can be difficult to get a full and final divorce, but if the spouses are already separateda mensa et thoro for an extended period of time (for example, three years), the court may decide to grant a full and final divorce. When the requirements of burden of proof for a divorce are difficult to meet, in most jurisdictions, ana mensa et thoro ruling assures the couple a slot in the court's schedule whenever they file for a full divorce, by showing that they were both serious about their separation.
Sometimes, ana mensa et thoro separation is used when one partner is claimed to be emotionally, verbally, or physically abusive, keeping the marriage in existence while the two spouses are physically separated. This physical separation may give the two of them a chance to work out the problems in their relationship while residing in legally sanctioned separate dwellings. Spouses may also request ana mensa et thoro separation to protect themselves from accusations of desertion or abandonment—such as in cases where one must depart from the other for an extended period of time.
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In most provinces of Canada, the terms "legal separation" or "judicial separation" are often used informally to describe a situation ofseparation where the couple has formalized certain agreements or entered into a contract. However, this situation is different from the specific legalstatus of legal/judicial separation that exists in some other jurisdictions and requires filing the courts for. As such,a mensa et thoro separation does not exist in most provinces of Canada, but the term "legal separation" has gained widespread use to describe a contract that is created between two spouses at the time of their separation. This contract is more properly referred to as a separation agreement, a legally binding written agreement voluntarily signed by two spouses (either married or common law) who have separated.
However, the province of Saskatchewan does allow a legal separation under provincial law, which is distinct from a divorce under federal law. A legal separation in Saskatchewan can be granted by the Court of King's Bench.[5][6]
In Ontario, a separation agreement is unenforceable unless it is made in writing, signed by the parties and witnessed. This written agreement usually resolves all issues arising from the separation, including custody and access, child support, spousal support and the division of property, except only a court can grant a divorce itself.
Before the introduction of theJudicial Separation and Family Law Reform Act 1989, the only means of judicial separation available in theRepublic of Ireland was to seek a decree of divorcea mensa et thoro. This could only be obtained on the grounds of adultery, cruelty, or "unnatural practices" (a concept never defined by the legislature or the courts). Post-1989 judicial separation is possible on one of six grounds, proven on thebalance of probabilities:
Of the six grounds, the latter forms the basis of the vast majority of judicial separation decrees. A "normal marital relationship" is not defined. The court must only be satisfied that there has been the loss of an "essential ingredient of the marriage".
In theUnited States of America, a legal separation may address the division of assets, division of debts, child custody, child support, and alimony. A separate maintenance agreement is not a legal separation and therefore child support and custody are typically not allowed to be addressed. A separate maintenance agreement is often confused with a legal separation which is filed with a court. Separate maintenance agreements are contracts between spouses and not approved by a court. They are similar to prenuptial agreements.[8]
Under the law of some states, a separation can occur by judicial decree,[9] or by an acknowledged ("notarized") agreement of the parties.[10] In some states, there must be grounds or acause of action to get a judicial decree of separation, such as "cruel and inhuman treatment ... abandonment ... neglect or refusal [to] support ... adultery by the defendant, [or] confinement of the defendant in prison ...."[9]Reconciliation is allowed. So, therefore, separation is revocable; state laws may require "the joint application of the parties, accompanied withsatisfactory evidence of their reconciliation ... by the court which rendered it, subject to such regulations and restrictions as the court thinks fit to impose."[11]
In the Philippines, a legal separation may only be had through a valid judicial decree. In addition, actions for legal separation shall not be tried "before six months have elapsed since the filing of the petition."[12] During this six-month "cooling-off" period, the spouses are encouraged to find forgiveness.
Under theCivil Code, there were only two grounds for legal separation:[13]
The grounds were later expanded under Article 55 of theFamily Code:[14]
(Note that the term "child" includes a child by nature or by adoption)
Article 63 of the Family Code enumerates the following concrete effects of a decree of legal separation:[15]
The law of Italy requires a period of legal separation (one year for contested separations, six months for consensual separations) before a decree of full and final divorce can be issued.
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