Judicial Separation, in English law, is the separation of two married persons by order of the Court of Divorce. Married persons may, if they please, mutually agree to live separate, and they may enter into a deed of separation for that purpose, which to some extent is recognised as valid by courts of equity. This is called voluntary separation. A deed of separation is always revocable by consent of the parties, though to some extent binding on each, if the other do not consent to renew the cohabitation. When the parties have not mutually consented to separate, one of them can compel a judicial separation for certain grounds of misconduct. Thus, either party may apply on the ground of adultery, or cruelty, or desertion without cause for two years and upwards. When a husband is convicted of an aggravated assault on his wife, the court before which he is tried may make an order which is almost equivalent to a judicial separation.
Married persons separated by deed or judicial order are still married. Not being divorced, they cannot marry again; but there is no longer the duty of cohabiting. The court may award a certain income to the wife after separation, and may also make orders as to the custody and maintenance of children. But, irrespective of this, the wife becomes, to all intents and purposes as regards her future property, in the same position as if she were unmarried. On the other hand, the husband is no longer responsible for maintaining his wife, except so far as he may have been ordered to pay her alimony, and he is not liable for her future debts. In 1857 the law on this head was materially improved, and a new Divorce Court established. See DIVORCE; also MARRIAGE.
In Scotland the law was changed in 1861, and now nearly coincides with the English law in many respects. Whenever a decree of separation a mensa et thoro is obtained at the instance of the wife, all property which she may acquire, or which may devolve upon her, is held entirely separate from and independent of her husband; she can bequeath it by will as if he was dead. She can also enter into contracts, and sue and be sued in her own name, and the husband is no longer liable for necessaries or her debts, except so far as he is bound by the decree of separation to pay her aliment. The grounds of judicial separation in Scotland also are nearly the same as in England.
In the United States the courts used till 1838 partial divorce a mensa et thoro; but since then the marriage contract is either wholly dissolved or the courts refuse to interfere.