Separation is when a person or a thing is set apart from another.

There are three types of separations , two that concern married persons, one that is called separation of property, the other separation of persons; the third is the separation of the heir's property from that of the deceased.

Separation of property is when two spouses have their property divided and apart from each other.

Sometimes the spouses are separated in property by the terms of the marriage contract, which occurs when they stipulate that the wife will own her property divided and apart from his. In this case the wife is authorized to draw her revenues, and usually she pays her husband a pension.

A wife not in community of property should not be confused with a wife separated in property by the marriage contract. The former is excluded only from requesting community in the property acquired by her husband. Moreover she does not have administration of her property unless she is separated.

Voluntary separations , either of property acquired just since the marriage or separations of persons and property, although permitted by some regional law codes, are not allowed according to our manners. With respect to property, such separations are usually fraudulent. Furthermore, voluntary separations of persons are against good morals. Every separation of persons and property, or even only of property acquired just since the marriage, must be ordered by the courts and with full knowledge of the case.

Separation of property can be requested only by the wife, in the event of dissipation on the part of her husband. She is not obliged, however, to wait until the husband has squandered all her property and, even less, the wife's dowry. Separation would then be a useless remedy. It suffices that the husband is a spendthrift and heading toward destitution [ que vergat ad inopiam ], for the dowry to be in danger. Book XXIV, On the Dissolution of Marriage ; Book XXIX, Code of Dowry Law ; Book I, Code of the Care of Madmen .

If the wife who requests her separation has property in common with her husband, she must renounce the community. Otherwise the acceptance that she would make of it would suggest that there has been no dissipation on the part of the husband.

The lack of renunciation of community, however, would not be grounds for invalidity in a decision in favor of separation , but because of not having renounced it, the wife would remain in community.

The wife who requests her separation must first secure authorization from the courts in order to pursue her separation .

The request for separation must be presented before the lay judge. The ecclesiastical judge cannot take cognizance of it, involving as it does a purely temporal matter.

When there are creditors, it is appropriate to involve them in order to see them governed by the decision that orders the separation , so that they cannot dispute it as collusive.

The result of the separation ordered by the courts is that the wife alone, without the permission of her husband, can perform all acts of administration of property and even go to law, but she cannot, without specific sanction of her husband or, upon his refusal, of the courts, draw up any deed that entails transfer of property.

To be valid, separation must be carried out, that is to say that an inventory and an official record of the sale of the husband's furniture must be made.

If the furniture was seized by creditors, however, the separation would be considered carried out, as far as the wife is concerned, through restitution of her possessions or other legal acts that prove that there has not been any fraud such as a seizure of property.

Separation of property may be ordered in the case of the husband's insanity, even though there is no dissipation on his part.

Separation of persons and residence or separation a thoro of sexual relations is a decision that orders that two persons joined by marriage will each have their separate residence in the future.

Among the Greeks and Romans, when there was some reason for which the spouses could no longer live together, there was the route of divorce, which, at certain times and in certain cases, was available to the wife as to the husband, in other cases only to the husband.

The result of divorce was to bring about the complete dissolution of the marriage, to such an extent that each of the spouses was free to remarry.

Divorce was still permitted in certain cases in the time of Justinian, but, among us, following canon law, marriage is held to be an indissoluble bond, which, having once been validly contracted, can no longer be dissolved, quoad foedus et vinculum [with regard to the connection and bond]. And although the Latin authors who discuss separations of persons and residence often use the term divortium [divorce] in speaking of these types of separations, it should not be understood to mean divorce properly speaking, which is not accepted among us quoad foedus & vinculum , but only quoad thorum & habitationem [with regard to sexual relations and residence].

There is indeed an essential difference between divorce and separation of persons , in that the latter does not dissolve the marriage.

This sort of separation is ordered only on account of cruelty to and mistreatment of his wife on the part of the husband.

There is hardly anyone but the wife who seeks to be separated in persons and property, because, being under the power of her husband, she cannot leave him, within the rules, without being authorized to do so by the courts.

There are, however, some examples of husbands who sought to be separated from their wives on account of their violence or other excesses, but these examples are very rare and are not in keeping with the true principles. The wife who conducts herself badly toward her husband should not be released from his power for that reason. The husband can have it ordered that his wife be locked up in a convent.

Separation of persons should be ordered only for serious reasons, so differences in tempers, and even the minor altercations that can arise between husband and wife, are not sufficient reasons for separation .

The reasons for which the wife may request her separation are

1. Cruelty and mistreatment, but they must be significant. Chapter XIII, Extracts from the Restitution of Spoils . Insults and threats are not ordinarily a sufficient reason. Between persons of high rank, however, the judges could take them more into consideration, because, for these types of persons are as sensitive to insults as ordinary people are to mistreatment.

2. If the husband is convicted of having made an attempt on his wife's life.

3. If he lives in debauchery and there is danger for his wife.

4. If he accuses his wife of adultery or other serious actions contrary to honor and he is overwhelmed by it.

5. Madness and rage in the husband, when they give cause to fear for the wife's life.

6. If he has conceived a deadly hatred for his wife.

The honor of marriage requires that the request for separation be pursued only through ordinary civil means, and not through extraordinary means, unless it is for some capital reason, for example if the husband had wanted to have his wife murdered,

All authors agree that the ecclesiastical judge is qualified to take cognizance of the request for separation of persons , provided he does not have any temporal interest involved in the dispute, but since one does not fail to request separation of property at the same time, as a necessary consequence of separation of persons, one usually presents these types of requests before the lay judge.

Separation should be ordered only on the basis of sufficient evidence, either in writing, if there is any, or resulting from an inquiry or investigation.

Once a wife has obtained her separation , the husband cannot force her to return to him, no matter what offers he makes to treat her maritally.

Once a wife's request is dismissed, on the other hand, she is sentenced to return to her husband, who is enjoined to treat her maritally. But in this case, when the judges do not endorse the request for separation, the wife is permitted to withdraw for a certain time to a convent, where her husband has freedom to see her, so that inflamed spirits have time to calm down.

Separation of persons and property excludes the spouses from being able to inherit from each other by virtue of the title unde vir et uxor [from husband and wife], this right of reciprocal transmission having been granted only to honor, in the person of the survivor, the memory of a harmonious marriage.

If the husband and wife who have been separated in persons and property get back together, the results of the separation cease, even for the property, and all things are restored to the same state they were in before the separation . See the Ecclesiastical Laws of d'Héricourt, the Treatise on Ecclesiastical Jurisdiction of Ducasse, and the words Spouses, Divorce, Dissolution, Marriage.

Separation of property in a succession is a decision that orders that the heir's property be separated from that of the deceased.

This separation occurs when it is feared that the property of the deceased or of the heir will not be sufficient to pay the creditors of one and the other.

Following Roman law, only the deceased's creditors were allowed to request it, in order to be paid from the property in preference to the heir's creditors, whether their bills were anterior or posterior in date.

But in France the heir's creditors can also request the separation of property of their debtor from that of the deceased, provided that the heir has not yet acknowledged the debt or that the bill has not been declared executed against him.

Among the Romans, this separation had to be requested within five years, but among us, the action lasts for thirty years. See the selection On Separations and Cujacacius, ibid. and the set of laws before the last in the code concerning inheritance , Bouvot, Le Prêtre, Boniface, Loysel, Bacquet, Henrys.