Legal separation is a legal process by which a married couple may formalize a de facto
separation while remaining legally married.
A legal separation is granted in the form of a court order.
Furthermore, in cases where children are involved, a court order of legal separation often makes
temporary arrangements for the care, custody, and financial support of the children.
Thus, part of the court order determines child custody.
Some couples obtain a legal separation as an alternative to a divorce, based on moral
or religious objections to divorce.
Legal separation does not automatically lead to divorce.
The couple might reconcile, in which case they do not have to do anything in order to
continue their marriage.
If the two do not reconcile, and they wish to proceed with a divorce, they must file
for divorce explicitly.
A mensa et thoro separation A mensa et thoro is a Latin phrase which means
"from table and bed," often translated as "from bed and board," in which "board" is
a word for "table."
Separation a mensa et thoro is essentially a separation that is sanctioned by a court
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."
There are several reasons why a couple might seek a mensa et thoro separation.
In some legal jurisdictions, including entire countries, it can be difficult to get a full
and final divorce, but if the spouses are already separated a mensa et thoro for an
extended period of time, 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,
an a 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, an a mensa et thoro separation is used when one partner is said 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 an a 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.
In the United States In the United States of America, issues that
can be addressed include child custody and support, child visitation schedules, and support
payments from one spouse to the other.
Under the law of most states, a separation can occur by judicial decree, or by an acknowledged
agreement of the parties.
In some states, there must be grounds or a cause 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 ...." Reconciliation
is allowed, so therefore separation is revocable; state laws may require "the joint application
of the parties, accompanied with satisfactory evidence of their reconciliation ... by the
court which rendered it, subject to such regulations and restrictions as the court thinks fit to
impose."
In Australia In Australia, the timing of separation may
have ramifications affecting both married couples and partners to a de facto relationship.
To qualify for a divorce in Australia, the court must be satisfied that the relationship
between the parties has broken down irretrievably.
The court will be satisfied that the relationship has broken down irretrievably if there has
been a period of 12 months separation immediately preceding the filing of an application for
divorce.
The applicant must swear on their application that the date of separation is true.
The date of separation is also of significance in the context of Australian de facto relationships.
Whether or not the property settlement jurisdiction of the Family Court will be available depends
upon whether the de facto couple separated after two years.
Furthermore, there is a two year limitation period from the time of separation in which
property settlement proceedings must be brought.
An Australian couple may continue to share residency and satisfy the requirements of
separation.
The Family Court of Australia or the Federal Magistrates Court will consider a range of
factors, including: the degree of financial separation between the parties, whether any
formal documentation was signed indicating separation, whether the separation was publicly
known, whether there were continued levels of intimacy between the parties and whether
there was any change in domestic responsibilities.
The processes of property settlement and child custody may be addressed from the time of
separation.
The three legal process of child contact, asset division and divorce are different and
applications for each are filed separately.
For more information see the Family Law Act 1975.
Other countries In some entire countries, and in some jurisdictions,such
as in Italy, an extended period of legal separation is required before a decree of full and final
divorce can be issued.
This period of legal separation can be considered to be a part of the divorce procedure in some
countries or some jurisdictions.
It needs to be noted that in some countries, the laws for marriage, separation, and divorce
vary from state-to-state or province-to-province.
Also, some countries, such as Russia, have large autonomous regions that make many of
their own laws.
See also Family therapy
Relationship counseling References