Separation

A termination of Cohabitation of Husband and Wife either by mutual agreement or, in the case of judicial separation, under the decree of a court.

Cross-references

Divorce.

separation

n. married persons living apart, either informally by one leaving the home or agreeing to "separate" while sharing a residence without sexual relations, or formally by obtaining a "legal separation" or negotiating a "separation agreement" setting out the terms of separate living. (See: separation agreement, legal separation)

separation

in family law in both England and Scotland, a court order ordaining and permitting the parties to live apart. A form of divorce by way of separation that does not, however, free the parties from the bonds of marriage. In terms it allows parties to live separately at bed and board or a mensa et thoro. In England, before the Matrimonial Causes Act 1857, a decree in these terms from the ecclesiastical courts was equivalent to a decree of judicial separation. In Scotland, prior to the Reformation, this was the only form of divorce known. Presently, the grounds are the same as those required to show IRRETRIEVABLE BREAKDOWN in divorce. The courts have the same powers in relation to financial orders and children as they do when making a decree of divorce. Judicial separation does not actually terminate the marriage and is therefore an appropriate course to take if there are religious objections to divorce or if the parties have not finally agreed to divorce. The term separation is also used more loosely to describe the situation arising when parties agree to live apart - frequently under the terms of a legally binding agreement (a separation agreement) that provides for the payment of money and the welfare of children. The term is used non-technically to describe people who are de facto living apart.

SEPARATION, contracts. When the husband and wife agree to live apart they are said to have made a separation.
2. Contracts of this kind are generally made by the husband for himself and by the wife with trustees. 4 Paige's R. 516; 3 Paige's R. 483; 5 Bligh, N. S. 339; 1 Dow & Clark, 519. 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, Hush. and Wife, passim; 4 Vin. Ab. 173; 2 Stark. Ev. 698; Shelf. on Mar. & Div. ch. 6, p. 608.
3. Reconciliation after separation supersedes special articles of separation in courts of law and equity. 1 Dowl. P. C. 245; 2 Cox, R. 105; 3 Bro. C. C. 619, n.; 11 Ves. 532. Public policy forbids that parties should be permitted to make agreements for themselves to hold good whenever they choose to live separate. 5 Bligh, N. S. 367, 375; and see 1 Carr. & P. 36. See 5 Bligh, N. S. 339; 2 Dowl. P. C. 332; 2 C. & M. 388; 3 John. Ch. R. 521; 2 Sim. & Stu. 372; 1 Edw. R. 380; Desaus. R. 45, 198; 1 Y. & C. 28; 11 Ves. 526; 2 East, R. 283; 8 N. H. Rep. 350; 1 Hoff. R. 1.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.