Divorce a mensa et thoro?

A mensa et thoro is a Latin phrase which means “from table and bed”, although it is often translated as “from bed and board”. Separation a mensa et thoro is essentially a separation that is sanctioned by a court order, meaning that the spouses may legally live apart, but they are still legally married.

In North Carolina, a divorce from bed and board is a fault-based legal action that has as its practical result, a legal separation between two parties. This type of Divorce action is created in section 50-7 of the North Carolina General Statutes.  A Divorce from Bed and Board does not sever the marital bonds so, in the traditional understanding of the word, it is not really a divorce.

You’ll recall that North Carolina is a no-fault jurisdiction in terms of dissolution of a marriage. That simply means that in NC, to have a Court enter an order of Absolute Divorce, the parties need not allege or show that there was fault (e.g., adultery). Instead, the only requirements under N.C.G.S. section 50-6 are that the parties have lived separate and apart for one year with the intent not to live as man and wife and one of the parties has resided in North Carolina for six months.

But if N.C. has only one form of Divorce then why do we have Divorce from Bed and Board?

Divorce from Bed and Board is a legal mechanism that can be used to affect a desired result. For example, Wife wants a divorce and wishes for Husband to move out of the marital residence so that the tolling of the one year required for Absolute Divorce may begin. Husband refuses to move out and, further, refuses to take part in any negotiations related to the development of a separation agreement. Assuming the existence of sufficient grounds (see below), Wife could seek a Divorce from Bed and Board as a way to 1) get Husband out of the house and 2) either compel Husband to participate in Separation Agreement discussions or petition the court for alimony, child support, child custody, etc.

Under N.C.G.S. 50-7, a spouse, the injured spouse, begins the process by filing an action for a Divorce from Bed and Board in court. The injured or complaining spouse must demonstrate, by the greater weight of the evidence, that he or she has been injured by the actions of the other, accused, spouse. There are six recognized grounds under this statute that can be alleged to support the claim. While the actions of the accused spouse may fall into more than one of the six grounds, it only takes a successful finding on one ground to satisfy the statute.

The six grounds are:

  • Either party abandons his or her family.
  • Either party maliciously turns the other out of doors.
  • The actions of a party are found to be cruel or barbarous as against the other party such that the treatment endangers the life of the other.
  • Either party offers such indignities to the person as to render his or her condition intolerable and life burdensome.
  • Either party becomes an excessive user of drugs or alcohol.
  • Either party commits adultery.
  •  Abandonment: For most people, abandonment means some sort of physical departure. While leaving the marital residence can, if with the requisite intent, satisfy this requirement it is not necessary. The institution of marriage is recognized as providing both parties with certain mutual rights (e.g., companionship, intimacy). If one party chooses to intentionally neglect or deny his/her spouse of these rights, a Court may find abandonment even if they still live under the same roof.

Note that the intent of the party who leaves or who neglects or denies the other spouse is critical. That party must be shown to have willfully intended to abandon his/her spouse or to end cohabitation.

To successfully demonstrate a case for abandonment, the spouse who is seeking the Divorce from Bed and Board must prove four elements of the ground:

  • That the other spouse intentionally ended cohabitation with the complaining spouse;
  • That it was that spouse’s intent not to resume cohabitation;
  • That it was done without the consent of the injured or complaining spouse; and
  • That it was done without provocation (i.e., that the spouse had no justification for leaving)
  •  Malicious Turning Out of Doors: To establish this ground, the complaining spouse must show that they were evicted from the home by the other spouse, either with malice or wrongfully.
  •  Cruel or Barbarous Treatment: Physical, mental and/or emotional cruelty will satisfy this ground. In fact, whereas the N.C. Courts once narrowly interpreted this ground, today, a broader approach has blurred the line between this ground and the ground of “personal indignities”.

To successfully plead cruelty, the injured spouse must specifically articulate the act or acts of cruelty and demonstrate that the act was unprovoked.

  •  Personal Indignities: This ground establishes a prohibition against a spouse behaving in such a way as to humiliate or cause the degradation of the other. There are three elements when attempting to prove personal indignities:
  • That the accused spouse acted inappropriately;
  • That the actions were committed willfully, maliciously, consciously and/or with the intent to annoy the other spouse; and
  • That the actions were not provoked by the injured spouse.
  •  Alcohol or Drug Abuse: This ground uses the same “condition intolerable and life burdensome”           standard as the ground of personal indignities. The difference is that to establish this ground, the injured spouse must demonstrate that the other spouse’s drug and/or alcohol use is so excessive and frequent as to make the life of the other spouse burdensome or intolerable. It is important to note that the standard requires that the complaining or injured spouse not have had a role in encouraging or inducing the excessive use.
  •  Adultery: A finding of marital infidelity is grounds for a Divorce from Bed and Board.

In a future post, we’ll talk about the defenses to a claim for Divorce from Bed and Board as well as dig deeper into the legal and practical impact of this action.

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