First of all, this is NOT about the legal process/judgment commonly called “divorce”, which appears to be more specifically called “Divorce a Vinculo Matrimonii”.
Apparently a divorce a mensa et thoro (from table and bed), is a rarely-used form of divorce which is recognized in Common Law countries and serves to effectuate a legal separation (that is, the court declares that the couple are not required to live together (or, perhaps that they aren’t even allowed to)), but the marriage is not terminated, neither spouse may remarry, and the divorce a mensa et thoro may be terminated in the future if the couple reconciles and wishes to live together again.
What’s the straight dope on current usage and utility of this process? How exactly is it different from other forms of “legal separation” that may be less formal, and why would one pick it? Is there a penalty of some sort (contempt of court?) if a couple under a divorce a mensa et thoro reconcile informally and cohabit without first asking the court to dissolve the divorce a mensa et thoro? How often does it really get used? Any lawyer dopers ever participated in or even heard of an actual case that was in process?
Literally, divorce “from the chains of matrimony.” Makes you wonder about the home life and personal marital satisfaction of lawyers and judges in the formative years of the common law.
Divorce a mensa et thoro was an early form of legal separation. It primarily protected the wife, since at common law the wife was obliged to live with her husband and he could compel her to have sexual relations with him without it being rape. As well, the husband had complete control over family finances, even cash and other assets that the wife brought to the marriage, so if she left him she would be penniless. There would also be the social stigma of a woman leaving her husband.
Hence, divorce a mensa et thoro, to allow the wife to refuse to live with her husband, and also entitle her to some alimony or other support.
Why does it still survive? well, one reason I have heard is that in some cases, there may be a couple which has religious beliefs about the sanctity of marriage, and yet one of the couple wants to cease living with the other, often because of abuse or adultery. Divorce a mensa et thoro is a judicial order which relieves them of the obligation to live together, and yet does not end the marriage. For some, that is apparently important.
I’ve not been involved in any actions of this sort professionally, but the action does still survive in my province, and that is what I’ve heard anecdotally.
My state has an action called “separate maintenance” that works roughly the same way. It’s useful when there is no provable fault ground for a divorce, and one of the spouses will not consent to an irreconcilable differences divorce. In this state, divorce on irreconcilable differences can’t be granted over the objection of one of the spouses, so if you can’t prove a fault ground and can’t agree on an irreconcilable differences divorce, you have to stay married. The parties live apart, have the option to reconcile, and there are provisions made for marital debt and spousal support where needed. There can also be a provision preventing transfer/disposal of marital property. Such an order is enforceable via contempt as to any of the affirmative duties imposed.
Yup. Essentially it’s a legal separation, with most of the incidents of divorce like maintenance, custody arrangements, property settlements, etc. The only thing it doesn’t allow is for the spouses to remarry.