Separation

A cessation of cohabitation of husband and wife by mutual agreement.

A cessation of cohabitation of husband and wife by mutual agreement. After much diversity of opinion in the English cases, the House of Lords upheld an agreement to live apart, and decreed specific performance of its covenants; 1 H. L. C. 538, followed in 4 De G., F. & J. 221; separation deeds are not per se against public policy; 12 Ch. Div. 605, per Jessel, M. R. See an interesting historical review of the English cases by R. J. Peaslee in 15 Ilarv. L. Rev. 638. In this country the weight of authority is wife, without the intervention of a trustee, which the courts will sanction; Carey v. Mackey, 82 Me. 516, 20 Atl. 84, 9 L. R. A. 113, 17 Am. St. Rep. 500; Randall v. Randall, 37 Mich. 563; Stebbins v. Morris, 19 Mont. 115, 47 Pac. 642; Hilbish v. Hattie, 145 Ind. 59, 44 N. E. 20, 33 L. R. A. 783; Sumner v. Sumner, 121 Ga. 1, 48 S. E. 727; the husband will be treated as trustee; Com. v. Richards, 131 Pa. 209, 18 Atl. 1007. When subject to such an agreement, the court will prevent the husband from decreasing the alimony, and will not aid the wife to increase the alimony; Martin v. Martin, 65 la. 255, 21 N. W. 595; Henderson v. Henderson, 37 Or. 141, 60 Pac. 597, 61 Pac. 136, 45 L. R. A. 766, 82 Am. St Rep. 741. But it is held that a husband and wife cannot contract to renounce 4hcir marital rights; Hill v. Hill, 74 N. II. 288, 67 Atl. 406, 12 L. R. A. (N. S.) 848, 124 Am. St. Rep. 966; Rogers v. Rogers, 4 Paige (N. Y.) 516, 27 Am. Dec. 84, where it is said that the law does not sanction such agreements, but merely tolerates them when made in such a maimer that they can be enforced by or against a third person acting on behalf of the wife; and to the same effect see Clark v. Post, 113 N. Y. 27, 20 N. E. 573; Baum v. Baum, 109 Wis. 47, 85 N. W. 122, 53 L. R. A. 650, 83 Am. St. Rep. 854, where such an agreement was held to he against public policy, as substituting l he will of the parties for the judgment of the court, and involving the assumption of a false character in both parties contrary to the marriage contract and subversive of the interests of society. The wife’s allowance is not forfeited by adultery unless so provided, which is usually by the “ dum casta” (while chaste) clause. If made in view of future separation, it is not good; 6 B. & C. 200. It is avoided by reconciliation; 31 Ch. D. 524; unless otherwise provided; [1904] 2 Ch. 121. But reconciliation does not necessarily put an end to a separation deed; e. g. where the husha Tid had made in the separation deed a settlement on the children; [1904] 1 Ch. 451; but when the parties changed their mind and did not separate, it was held that the consideration had failed and the settlement was avoided; L. R. 7 Eq. 343; the distinction raised in this case is said to be a fine one; 20 L. Q. R. 234. Reconciliation after separation supersedes special articles of separation, in courts of law and equity; 1 Dowl. P. C. 215; Wells v. Stout, 9 Cal. 479. Articles of separation are no bar to proceedings for divorce for subsequent cause; Rogers v. Rogers, 4 Paige (X. Y.) 516, 2*7 Am. Dec. 84; J. G. v. H. G., 33 Md. 401, 3 Am. Rep. 183. SEPARATION A MENSA ET TH0R0. A dissolution of the marriage relation. divorce, marriage was regarded as a sacrament and Indissoluble. This doctrine originated with the church of Rome, and became established in England. After the reformation it ceased to be the doctrine of the church of England, yet the law remained unchanged until the statute of 20 & 21 Viet. (1857) c. 85, and amendments; Bish. Marr. & D. 8 65, n., 225; 1 Bish. M. Div. & S. § 1377. Hence a valid marriage could not be dissolved In England except by what has been termed the omnipotent power of parliament. This gave rise, in the ecclesiastical courts, to the practice of granting divorces from bed and board, as they used to be called, or judicial separation, as they are called in the statute 20 & 21 Viet. c. 85, § 7; Bish. Marr. & D. § 65, n., 225; 1 Bish. M. D. & S. § 1377. From England this practice was introduced into this country; and though in some of the states it has entirely given way to the divorce a vinculo matrimonii, in others it is still in use, being generally granted for causes which are not sufficient to authorize the latter. The legal consequences of a separation from bed and board are much less extensive than those of a divorce a vinculo matrimonii or a sentence of nullity Such a separation works no change in the relation of the parties either to each other or to third persons, except in authorizing them to live apart until they mutually come together. In coming together, no new marriage is required; neither, it seems, under the general law, are any new proceedings in court necessary; but the reconciliation, of its own force, annuls ! the sentence of separation; Dean v. Rich- j mond, 5 Pick. (Mass.) 4G1; Barrere v. Barrere, 4 Johns. Ch. (N. Y.) 187; Thompson v. Thompson, 2 Dali. (Pa.) 128, 1 L. Ed. 317; Cro. Eliz. 90S. Nor does such a separation, at common law and without statutory aid, change the relation of the parties as to property. Thus, it neither takes away the right of the wife to dower, nor the right of the husband to the wife’s real estate, either during her life or after her death, as tenant by the curtesy; neither does it affect the husband’s right in a court of law to reduce into possession the choses in action of the wife; though in equity it may be otherwise; Kriger v. Day, 2 Pick. (Mass.) 310: Clark v. Clark, 6 Watts & S. (Pa.) 85; Cro. Eliz. 908; Holmes v. Holmes, 4 Barb. (N. Y.) 295. — It should be observed, however, that in this country the consequences of a judicial separation are frequently modified by statute. See Bishop. Marr. & D. §§ 660-695, Bish. M. D. & S. § 1832. Of those consequences which depend upon the order and decree of the court, the most important is that of alimony. See Alimony. In respect to the custody of children, the rules are the same as in case of divorce a vinculo matrimonii; Bish. Marr. & D. c. 25.

In matrimonial law. A cessation of cohabitation of husband and wife by mutual agreement, or, in the case of "judicial separation," under the decree of a court. See Butler v. Washington, 45 La. Ann. 279, 12 South. 356, 19 In R. A. 814; Weld v. Weld, 27 Minn. 330, 7 N. W. 267; Hereford v. Pcople, 197 III. 222, 64 N. E. 310.

— Separation a mensa et thoro. A partial dissolution of the marriage relation.

— Separation order. In England, where a husband is convicted of an aggravated assault upon his wife, the court or magistrate may order that the wife shall be no longer bound to cohabit with him. Such an order has the same effect as a judicial decree of separation on the ground of cruelty. It may also provide for the payment of a weekly sum by the husband to the wife and for the custody of the children. Sweet.

in contracts. When the husband and wife agree to live apart they are said to have made a separation. Contracts of this kind are generally made by the husband for himself and by the wife with trustees. This contract does not affect the marriage, and the parties may at any time agree to live together as husband and wife. The © husband who has agreed to a total separation cannot bring an action for criminal conversation with the wife. Roper, Husb. and Wife, passim; 4 Vin. Ab. 173; 2 Stark. Ev. 698.