Living Apart

Section 5 of the Divorce Act states that at the date of the institution of proceedings the spouses must have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years. However there is no definition of what constitutes “living apart” contained in the Divorce Act.

This issue was recently examined in the High Court, in McA. (M.) –v- McA. (X.) [2000]. In this case the Applicant wife disputed the Respondent's right to seek a divorce because she maintained, they had not lived apart from one another for the prescribed time.

In considering the law on “living apart” Justice Mc Cracken looked at judgements presented in various English cases as there was little or no case law here on the subject. He gave his opinion that some of the cases clearly expressed the view that the intention of the parties is a very relevant matter in determining issues such as whether they live apart. He stated further:

“It must be born in mind that the right to a divorce in this country is a constitutional right arising under Article 41.3.2 of the Constitution, and that the 1996 Act sets out the circumstances under which such constitutional right may be exercised. In construing the Act the court must have regard to the context in which words are used, namely the termination of a matrimonial relationship. Marriage is not primarily concerned with where the spouses live or whether they live under the same roof, and indeed there can be a number of circumstances in which the matrimonial relationship continues even though the parties are not living under the same roof as, for example, where one party is in hospital or an institution of some kind, or is obliged to spend a great deal of time away from home in the course of his or her employment. Such separations do not necessarily constitute the persons as living apart from one another. Clearly there must be something more than mere physical separation and the mental or intellectual attitude of the parties is also of considerable relevance. I do not think one can look solely either at where the parties physically reside, or at there mental or intellectual attitude to the marriage. Both of these elements must be considered, and in conjunction with each other.

 "Applying this test, I have no doubt that, just as parties who are physically separated may in fact maintain their full matrimonial relationship, equally parties who live under the same roof may be living apart from one another. Whether this is so is a matter which can only be determined in the light of the facts of any particular case”.

The judge went on to grant the decree stating that the Respondent did not return (to the family home) with any intention of resuming a normal matrimonial relationship and he never considered himself to be living together with the Applicant in a marriage and accordingly the respondent had satisfied the conditions of Section 5. 

Other factors mentioned in case law which could demonstrate an Applicants intention that the marriage was over are as follows:

The Living Arrangements – whether they had separate bedrooms and how they used the facilities, like the bathroom, kitchen etc.

Services – what services they provided or did not provide for each other like cooking, cleaning, laundry, sexual etc.

Holidays – whether they holidayed together and if so how they shared the accommodation.

Financial Arrangements – whether they had separate bank accounts, how they paid the bills etc.

Relationships – whether they had other relationships

Contact – what efforts they made to avoid each other and live separate lives.

In deciding whether the over 4 year rule is satisfied parties should first consider is there agreement on the date of separation and the begining of living apart. If there is no agreement and the application was to be contested in court then the party proposing it must be able to prove it to the satisfaction of the court. And if there is agreement parties should be aware that their agreement alone is not sufficient and they must satisfy the law otherwise their divorce may be invalid.

However, despite the favourable decision in the above mentioned case the High Court in a subsequent case refused to accept that parties living under the same roof were living apart. All of the circumstances are relevant to each case i.e. their intentions to live separate and apart, whether they are in separate rooms, how the household is arranged, how do they operate their finances, do they eat together, holiday together, have they other partners, what services they carry out for each other be it sexual, laundry, cooking etc.

Please do not call us seeking our services on the basis that you are simply in separate bedrooms without considering the above and what constitutes "living apart".

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