Did you know in which ways a marriage can end? Marriage ends by (i) death, or (ii) if a missing person who is presumed dead or has been declared deceased is still alive on the day the surviving spouse enters into a new marriage or registered partnership, (iii) through divorce, and (iv) through annulment of the marriage after a legal separation (“scheiding van tafel en bed”).
Not too long ago, I filed an introductory divorce petition. Because there were minor children involved, I primarily requested the court to grant a divorce and, subsidiarily, requested the court to grant a legal separation. Finally, I asked the court to proceed with the division of the dissolved marital community, appointing a notary before whom the division would take place. Contrary to all expectations, the woman (who appeared in court without a lawyer) opposed the divorce. Although she did not speak Dutch, Papiamentu, or English fluently, she clasped her hands together and pleaded with the judge in broken Papiamentu: “Un chèns mas, un chèns mas, un chèns mas” (“One more chance, one more chance, one more chance”). She argued that the marriage was not irretrievably broken and that a divorce was not in the best interests of the minor children.
The judge ultimately ruled that a divorce at the request of one spouse cannot be granted against the will of the other spouse if the marriage produced one or more children who are still minors, unless the spouses have lived continuously and durably separated for at least three years. Durable separation exists when one spouse desires a break in the marital cohabitation so that each leads his or her own life as if not married to the other, and this state is intended to be permanent by at least one of them. Because both the man and the woman indicated in court that they still lived in the same house, the judge concluded that there was no durable separation. Therefore, the request for divorce could not be granted. The subsidiary request on behalf of the man, for legal separation, was granted by the judge as uncontested and in accordance with the law.
Many of you may have heard of this, but are not exactly sure what it means to be legally separated. A legal separation is a way to put an end to cohabitation without ending the marriage itself. The legal separation, or divortium quoad mensam et thorum, dates back to canon law and was introduced as an escape mechanism for marriages in which all marital life had become untenable. At the time, the ecclesiastical judge was authorized to determine whether there were grounds for a legal separation. Later, in the nineteenth century, legal separation became useful for those who opposed divorce for religious reasons. Those who did not wish to divorce, but still sought the possibility of reconciliation, also opted for legal separation.
Special grounds for granting a legal separation—besides the grounds for divorce that could also lead to legal separation (e.g., irretrievable breakdown)—included “excesses, abuse, and gross insults committed by one spouse against the other” (Article 288 of Book 2 of the Civil Code, old version). For those who did not want to publicly air their dirty laundry, legal separation could also be granted at the joint request of the spouses, “without the need to state a specific cause.”
The legal consequences of a legal separation largely correspond to those of a divorce. The duty to cohabit ends, and the marital property community between spouses is dissolved. The law also regulates additional legal consequences, relating to children, maintenance, and continued use of the marital home.
Some people—particularly those who wish to abolish legal separation—whisper that spouses are still free to live apart even without the law providing for legal separation. This argument does not hold, as the freedom for spouses to live apart is precisely recognized under the legal framework of scheiding van tafel en bed. Furthermore, legal separation addresses the desire that the legal relationship between spouses—especially concerning their children—is regulated in cases of long-term non-cohabitation. I therefore strongly recommend choosing a properly regulated legal separation rather than informal non-cohabitation.
If you are considering a separation, there are minor children involved, and you have questions about a (divorce) legal separation (scheiding van tafel en bed), please feel free to contact us at eisden@true-lawyers.com.