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Separation a Mensa Et Thoro

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SEPARATION A MENSA ET THORO. A partial dissolution of the marriage relation.

By the ecclesiastical or canon law of England, which had exclusive jurisdiction over marriage and divorce, marriage was regarded as a sacrament and indissoluble. This doctrine originated with the church of Rome, and became established In Eng land. After the reformation it ceased to be the doc trine of the church of England, yet the law remain ed unchanged until the statute of 20 & 21 Vict. (1857) c. 85, and amendments ; Dish. Marr. & D. § 65, n., 225; 1 Bish. M. Div. & 'S. § 1377. Hence a valid marriage could not he 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 gener ally 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 par ties either to each other or to third persons, except in authorizing them to live 'apart un til they mutually come together. In coming

together, no new marriage is required ; nei ther, 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 mond, 5 Pick. (Mass.) 461; Barrere v. Bar rere, 4 Johns. Ch. (N. Y.) 187; Thompson. v. Thompson, 2 Dal]. (Pa.) 128, 1 L. Ed. 317; Cro. Eliz. 908.

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 eurtesy; 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 equi ty it may be otherwise ; Kriger v. Day, 2 Pick. (Mass.) 316; 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 stat ute. 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.