27 January 2012

Little Known Family Law Facts #4

There's no such thing as a "legal separation." At least not anymore.

There were once two types of divorces, a divorce à mensâ et thoro and a divorce à vinculo matrimonii. The first kind was a divorce "from bed and board" and freed married spouses from their common law obligation to cohabit without actually severing the marriage; this was very useful for those whose religion forbade them from unhitching once hitched. The second was an absolute divorce which actually terminated the marriage.

The power to make divorces à mensâ et thoro was stripped from the church in the first commonwealth legislation on divorce, the English Divorce and Matrimonial Causes Act of 1857. Under s. 7, the court received the power to make a "judicial separation:"
"No Decree shall hereafter be made for a Divorce à Mensâ et Thoro, but in all Cases in which a Decree for a Divorce à Mensâ et Thoro might now be pronounced the Court may pronounced a Decree for Judicial Separation, which shall have the same Force and the same Consequences as a Divorce à Mensâ et Thoro now has."
This legislation became the law of the colonies of British Columbia and Vancouver Island on 19 November 1858 by the proclamation of Governor Sir James Douglas, and even survived as s. 10 of the first Family Relations Act in 1972. Under s. 10, someone who would be entitled to a divorce under the federal Divorce Act could apply for a judicial separation, as long as the spouse had lived in the province for at least ten months.

The 1972 Family Relations Act was repealed by the 1978 Family Relations Act. The new act did not carry s. 10 forward, and accordingly there has been no statutory authority for the judicial separation since that time.