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|Marriage and other|
equivalent or similar unions and status
|Validity of marriages|
|Dissolution of marriages|
|Private international law|
|The Family and the Criminal Code|
(or Criminal Law)
Legal separation (sometimes "judicial separation," "separate maintenance," "divorce a mensa et thoro," or "divorce from bed-and-board") 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 ("for the time being"). 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 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." (In some jurisdictions, provable "desertion" is legal grounds for a divorce.)
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 (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, 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 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.
In some entire countries, and in some jurisdictions,such as in Italy, an extended period of legal separation (for example, three years or five years) 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.