An absolute divorce is what most people simply refer to as a divorce, the termination of the bonds of matrimony. History provides the reason some states still use the term absolute divorce, rather than adopting the simpler term, divorce. Due to the heavy influence of British common and ecclesiastical law at present when the U.S. was forming laws, concepts such as limited and absolute divorce were borrowed from those systems and remain part of American jurisprudence in some states today.
Divorce A Mensa Et Thoro
As divorce law was developing in the United States, it was still difficult to get a divorce in Britain and annulments had the unfortunate effect of rendering children illegitimate under the law. Thus British law included the concept of limited divorce which was less than a divorce and which allowed children born of the marriage to remain legitimate. The Latin term, divorce a mensa et thoro, translated as divorce from bed and board, was used to describe a limited divorce because in this kind of divorce, the couple remained married, but no longer lived together.
Limited Divorce Today
The concept of limited divorce is still active in a number of states today, although several different terms are used. For example, the order providing that the parties will live separately, but remain married, is called divorce a mensa et thoro in Virginia, a limited divorce in Maryland and a legal separation in Ohio. In such states, the limited divorce remains a choice for couples who do not want a full divorce, but who want to separate and address matters such as support, custody or economic issues. Some states allow parties to use a limited divorce as a stepping stone, later converting it into an absolute divorce, if they wish. Other states, such as Pennsylvania, do not offer couples any kind of legal separation or limited divorce option.
Divorce A Vinculo Matrimonii
Many states also adopted the British concept of divorce a vinculo matrimonii, or absolute divorce. This completely dissolved the parties' marital ties as of the date of the divorce decree, leaving them free to remarry. As this was contrary to the pervasive religious precept of lifelong marriage, an absolute divorce was difficult to obtain, and one party had to prove in court that he was both injured by the wrongdoing of the other spouse and innocent of wrongdoing himself.
Absolute Divorce Today
Like the limited divorce, the Latin terminology has become less prevalent --although still used in Virginia -- and most states call the permanent dissolution of the marriage a divorce, dissolution or absolute divorce. One reason for the shift is that the terms implied misconduct and, as society has become more permissive, so have divorce laws, with all states now adopting some version of no-fault divorce. No-fault divorce allows couples to obtain a divorce without the necessity of proving innocence or wrongdoing.