Maschaur v. Maschaur
23 App. D.C. 87
D.C. Cir.
1904
Check Treatment
Mr. Chief Justice Alvey

delivered the opinion of the Court:

There are several provisions of the Code relating to divorces, both a vinculo matrimonii and a mensa et thoro.

By § 85, declaring the jurisdiction of the court of equity, it is provided that “the equity court shall have jurisdiction of all causes heretofore cognizable in equity, and of all petitions for divorce, except” etc. But the more particular provisions upon the subject are contained in the following sections of the Code: — •

“Sec. 966. Causes for divorce a vinculo and for divorce a mensa et thoro.- — A divorce from the bond of marriage may be granted only where one of the parties has committed adultery during the marriage: Provided, That in such case the innocent party only may remarry, but nothing herein contained shall prevent the remarriage of the divorced parties to each other: And Provided, That legal separation from bed and board may be granted for drunkenness, cruelty, or desertion: And Provided, That marriage contracts may be declared void in the following cases:” and then follow the enumeration of cases in which marriage contracts may be declared void.
*93“Sec. 968. In suits for divorce a vinculo divorce a, mensa ei thoro may be decreed. — Where a divorce from tbe bond of marriage is prayed for the court shall have authority to decree a divorce from bed and board if the causes proved be sufficient to entitle the party to such relief only.
“Sec. 969. Revocation of divorce a mensa et thoro. — In all cases where a divorce from bed and board is decreed, it may at any time thereafter be revoked by the court upon the joint application of the parties to be discharged from the operation of the decree.
“Sec. 970. Causes arising after divorce a mensa et thoro.— Where a divorce from bed and board has been decreed the court may afterwards decree an absolute divorce between the parties for any cause arising since the first decree and sufficient to entitle the complaining party to such decree.”

These sections are all arranged under the title Divorce, and they plainly contemplate and provide for the two kinds of divorce that were known to the law before the adoption of the Code, that is, divorce a vinculo and divorce- a mema et thoro.

But it is contended that there is such ambiguity and uncertainty introduced into § 966 by the employment of the terms legal separation from bed and board, that it is impossible to determine to what kind of divorce or separation those terms refer, —whether to divorce a mensa et thoro, or to some other kind of separation. It is argued here, and the opinion has been expressed by the court below, that “the expression ‘legal separation’ was unknown to our law before it found its place in the Code; and, in the absence of some definition in the statute, is of a very uncertain significance; for separation by decree a mensa et thoro, or by voluntary separation of the parties, executed in legal form, may be equally comprehended by the phrase legal separation,’ as would be the result of a divorce a vinculo matrimonii.” And further, it is said that “there can be no decree for divorce in the absence of an amendment of the law which shall state distinctly (according to what may be the wish of Congress) whether the courts are to be empowered to decree on these cases at all, and if so, whether they are to grant the divorce according to the provisions of the old law, or according to those of the Code.”

*94It may well be conceded that the provisions contained in § 966 are net, in all respects, very happily expressed, and the phraseology employed is not the most appropriate that conld have been selected. But we think there is no> real difficulty in arriving at the intention of the legislature, from the language employed. We cannot suppose for a moment that the terms “legal separation from bed and board,” as employed in the Code, can have any application to voluntary deeds of separation, for in respect to them the courts are not required to make decrees to give them legal effect; and it is equally plain, we think, that those terms do not apply to or describe the divorce a vinculo matrimonii, as that divorce is final and does more than separate from bed and board. The term, “legal separation from bed and board,” expresses substantially the same meaning as the term, divorce a mensa et thoro. The prefixing the adjective legal to the words, “separation from bed and board” is only an inartificial mode of expressing the meaning of what would have been better expressed by the use of the word “divorce” instead of the term “legal separation.” But reading the several sections of the Code, to which we have referred, in the light of and by the aid furnished by the index or headlines of these sections, we think no doubt can exist as to the real meaning of the authors of the Code; and that “legal separation from bed and board” is a synonymous term with divorce a mensa et thoro.

The meaning of the word “divorce” is separation; and, as defined by the best text writers upon the subject, “a divorce is a lawful separation of husband and wife, made before a competent judge on due cognizance had of the cause, and sufficient proof made thereof.” And according to another definition, “it is a sentence pronounced by an ecclesiastical judge, whereby a man and woman formerly married to each other are separated and parted, according to law.” Godolphin, Abr. 493; Shelford, Marr. & Div. 363.

The separation from bed and board is only a partial divorce, and does not dissolve the bond of marriage. Such divorce, by judicial decree, gives legal effect to actual separation of husband and wife; but retains power and jurisdiction over the parties and *95the matter of separation. The distinction between divorce from bed and board, and from the bond of marriage, is not mentioned in Scripture, and was unknown to the ancient church. It was devised by the Canonists and schoolmen, to avoid the dissolution of the sacred bond of marriage, and was first established by the decrees of the Council of Trent in 1563. Shelford, Harr. & Div. 365. The writers of the highest authority speak of this partial divorce as judicial separation. Chancellor Kent, in his Commentaries, Vol. 2, p. 125, says: “The court may decree a separation from bed and board forever, or for a limited time, in its discretion, and the decree may be revoked at any time by the same court by which it was pronounced,” etc. And again, in speaking of this partial divorce, the author says [p. 128] : “And on these separations from bed and board, tlie courts intrusted with tbe jurisdiction of tbe subject will make suitable provision for the support of the wife and children out of the husband’s estate, and enforce the decree by sequestration.” That is, beyond doubt, the kind of divorce contemplated by the section of .the Code, and which the terms “legal separation from bed and board” are used to describe.

But it is argued that because there is no limitation of time affixed to these causes for which this partial divorce or separation may he decreed, therefore the provision of the Code in relation to it is too indefinite and uncertain to he carried into operation, and that there is no power in the courts to grant such divorce for separation from bed and hoard, until there shall have been an amendment by act of Congress procured, defining with greater certainty the causes for which such partial divorces may be granted. But we fail to perceive the force of tbis objection. There are three causes mentioned hv the Code for which such partial divorces may be granted, that is to say, drunkenness, cruelty, and desertion. The statute does not declare for what length of time drunkenness shall continue, or what degree of cruelly shall exist, or for what time actual desertion shall continue; but these causes are all well known to and defined in the divorce law of the country, and there can he no difficulty in arriving at the legal definition of the terms employed. In some of the *96States where these causes are made grounds for divorce, there is no limitation of time prescribed for the continuance of drunkenness, or desertion, any more than for cruelty. This is so in New York, North Carolina, and other States. The meaning of the terms employed is left to the settled construction placed upon them by the courts, in the administration of the divorce law of the country. In many of the States, as was the case in this District prior to the adoption of the Code, periods of limitation are prescribed for the continuance of desertion and also of drunkenness, before the right- to relief accrues. But the law in that respect has been changed in this District by the adoption of the Code.

We think there was error committed by the court below in holding that there was no jurisdiction to entertain the petition for divorce a mensa et thoro, and in refusing the order to allow the taking of testimony in support of the allegations of the petition filed by the appellant. We must, therefore, reverse the order appealed from and remand the cause, that further proceedings may be had not inconsistent with the foregoing opinion.

Order reversed and cause remanded for further proceedings.