Judicial Separation Order (All CC Jurisdictions Except Antigua and Barbuda, Barbados, Jamaica, St Kitts and Nevis)

• Pages: 94-101

CHAPTER 6

JUDICIAL SEPARATION ORDER

(all CC jurisdictions except Antigua and Barbuda,

Barbados, Jamaica, St Kitts and Nevis)

1. BRIEF HISTORY OF JUDICIAL SEPARATION ORDERS

Prior to the introduction of civil divorce by the MCA 1857, England, a decree of mensa et thoro,

although it did not dissolve a marriage, was effectively the only legal remedy available to

spouses, which was similar to a divorce for persons who wished to bring the marital relation-

ship to an end. The option of a decree or declaration of nullity of marriage was of very

restrictive application and the only other alter native, a divorce by a private act of parliament,

was a statutory divorce reserved, in practice, for the wealthy and powerful. However with the

passage of The MCA 1857, the civil divorce remedy, albeit on extremely restrictive g rounds,

was introduced and the mensa et thoro decree, replaced by the decree of judicial separation.

The granting of a decree of mensa et thoro allowed a wife to live separate and apart from

her husband without being guilty of desertion as a wife guilty of desertion, without a mensa et

thoro decree, forfeited her right to maintenance. The grounds on which the mensa et thoro decree

was granted by the ecclesiastical courts were misconduct, cruelty and adultery, but it did not

include desertion. Upon the grant of the decree by the ecclesiastical court, the payment of

alimony (spousal maintenance) could then be enforced by the civil courts.

Since the judicial separation decree does not dissolve the marriage but relieves the appli-

cant from the obligation of cohabiting with the respondent, if at some future date the parties

wish to resume cohabitation, the decree may be rescinded or discharged, whereupon the obli-

gation to cohabit is revived.

2. APPLICABLE JURISDICTIONS1

Judicial separation orders remain part of the matrimonial law of the CC jurisdictions save

Antigua and Barbuda, Barbados, Jamaica and St Kitts and Nevis in which jurisdictions,

decrees of judicial separation have been abolished, either expressly or by necessary implication

as follows:

• Antigua and Barbuda and St Kitts and Nevis – The current matrimonial legislation, while

not expressly repealing judicial separation proceedings, contains no provisions in respect

of such proceedings as was previously the case under the repealed matrimonial causes

legislation of these jurisdictions.2

• Barbados – Although the Family Law Act CAP.214 (FLA) contains no express provision

repealing the former matrimonial legislation, there is no provision for judicial separation

proceedings as was the case under the former matrimonial legislation. Matrimonial

1 Anguilla – s.14, MPPA RSA c.M60; BVI – s.15, MPPA 1995; Belize – s.140, SCJA CAP.91; Dominica and

Grenada – s.17, MCA, 1973, England; Guyana – s.2(3), MCA Cap.45:02; Montserrat – s.12(3)(4), MCA

CAP. 5.02; St Lucia – s.6, Divorce Act Cap.4.03; SVG – S.25, MCA CAP.239; The Bahamas – s.3, MCA

CH. 125; Trinidad and Tobago – s.15, MPPA Chap.45:51.

2 See Antigua and Barbuda – s.21, Divorce Act No.10 of 1997 which repealed the MCA Cap.268; St Kitts

and Nevis – s.24, Divorce Act Cap.12.03 which repealed the MCA Cap 50.