In a recent case (5 June 2012) in the Federal Magistrates Court, the husband’s Application for Divorce filed in December 2011 claiming that he and his wife had separated in July 2009 when he moved out of the home was refused. His wife had filed a Response disputing that the parties had been separated and lived separately and apart for the period of twelve (12) months immediately preceding the date of filing of the Divorce Application as required by the Family Law Act.
She stated in her Response that it was her belief that the marriage was continuing even though she and her husband were living in separate homes. The wife’s evidence was that she and the husband had continued a sexual relationship, socialised together and operated a joint bank account (for child maintenance according to the husband).
The law requires parties to have lived separately and apart for a continuous period of not less than twelve (12) months immediately preceding the date the Divorce Application is filed.
Physical separation is neither necessary nor a sufficient condition to establish a separation for the purposes of the Family Law Act. The parties to a marriage may regard themselves as being married even though they are living apart for a period of time.
The three elements that are required to be satisfied for a finding that parties have separated are:
a. An intention to separate;
b. Action upon that intention;
c. Communication of that intention to the other party.
Accordingly, separation can only occur where one or both of the spouses to the marriage form the intention to severe the relationship or, at least, not to resume the marital relationship after they have physically separated and act on that intention or alternatively, act as if the marital relationship has been severed.
There is also a need to communicate that intention to separate to the other spouse. That communication can be spoken or unspoken.
To comply with the Family Law Act there must be some overt separation, some evidence that there are two households, not one.
The fact that parties engage in sexual intercourse after separation is an important but not a decisive factor in deciding whether the marriage has ended.
Sexual Intercourse is only one of a number of elements which accumulatively make up the marriage relationship. It cannot be said that sexual intercourse between spouses is the sole basis of the marriage. Once cohabitation has ceased and one of the parties has by their conduct rejected the marital relationship, sexual intercourse between the husband and wife will not, of itself, have the effect of a resumption of cohabitation.
It is also very important whether or not married (but possibly separated) couples hold themselves out to the world as a couple by attending various social functions together.
It is up to the person applying for a divorce to prove that the parties have separated and lived apart for a period of twelve (12) months immediately preceding the date of the filing of the Application for the divorce. It is not sufficient to show that the parties have been separated for a period of twelve (12) months prior to the date of the hearing. If the parties were not separated for twelve (12) months, the matter cannot be cured by an adjournment. A fresh Application must be filed.
Accordingly, even if parties to a marriage are living in separate households but still acting as if they were a married couple by maintaining regular sexual relationship, attending social functions together, staying in hotel rooms together and operating joint bank accounts for example, these factors are highly indicative of an ongoing marriage relationship, particularly in circumstances where there is a dispute
as to whether or not the intention to separate has been communicated.
Whilst each case is different and is determined on its merits, it is not always black and white.