Living Apart

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The parties are regarded as living apart if they are not living in "the same houshold". This is a very flexible concept: they may be still living under the same roof, and the test seems to be the extent to which they share a common life, together with the nature of their relationship. There is certainly no requirement that they should not speak to one another for this time.

Mouncer v Mouncer [1972] 1 All ER 289, Wrangham J
H and W were on very bad terms; they slept in separate rooms, but ate meals (cooked by W) together, usually with one or both of their children. W did not do H's laundry, but they shared the cleaning of the whole house. H stayed only to help care for the children, but after two years he left and petitioned for divorce under s.2(1)(d) of the 1969 Act (the same in all essentials as s.1(2)(d) of the 1973 Act). His petition failed: the judge said the absence of a normal physical relationship between two persons sharing the same household did not constitute "living apart".

Santos v Santos [1972] 2 All ER 246, CA
For the past six years, H had lived mainly in Spain and W mainly in England, though on several occasions one had visited the other for up to a month, sharing a bedroom, and at least once they had shared the same bed. W petitioned for divorce under s.1(2)(d), but the judge refused her petition mainly because of the time spent together in Spain. Allowing W's appeal and ordering a rehearing, Sachs LJ said reference had often been made, he said, to diplomats en poste, convicted prisoners and prisoners of war, and those in hospital; he might also add businessmen working overseas and those on voyages of exploration or convalescence. "Living apart" usually requires proof of something more than mere physical separation, and the relevant state of affairs does not exist while both parties regard the marriage as subsisting. The judge would have to decide - it would sometimes be difficult - how the separation came about and whether then or at what later time the petitioner ceased to regard the marriage as any more than an empty shell.

Fuller v Fuller [1973] 2 All ER 650, CA
H and W separated after 22 years' marriage; W went to live with P and called herself Mrs P. Four years later H became seriously ill and went to live with P and W; W cooked H's meals and did his laundry, but continued to sleep with P; H paid£7 per week for his board and lodging. W subsequently petitioned for divorce on the basis of s.1(2)(e), and the Court of Appeal allowed her appeal against the judge's dismissal of her petition. Lord Denning MR said H and W were not "living together as husband and wife", and that was the meaning to be ascribed to the section.

Piper v Piper (1978) 8 Fam Law 243, CA
H and W separated after 13 years' marriage. They had separate flats, but over the next 5 years H often visited W for weekends, three times for a whole week, and once for more than four months; the visits often included sexual intercourse. H was granted a decree nisi on the basis of five years' separation, and the decree was affirmed on appeal. The trial judge had decided as a fact, said Ormrod LJ, that H was "just visiting" and that the parties had not been "living together" during the relevant time. It would have been different had H made his home in W's flat and simply slept in his own room elsewhere during the week.

The tests for the two- and five-year separation facts are essentially the same except for the respondent's consent and the time required, but the non-consenting respondent has a defence to the five-year claim.

Matrimonial Causes Act 1973 s.5(1)
The respondent to a petition for divorce in which the petitioner alleges five years' separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage.

(Note that the hardship must result from the divorce, not simply from the breakdown of the marriage.)

Parker v Parker [1972] 1 All ER 410, Cumming-Bruce J
A police officer H petitioned for divorce after a five-year separation, and W opposed the petition because it would deprive her of the police widow's pension if she survived her husband. The judge found this would constitute grave financial hardship, but H was prepared to take out a deferred annuity to compensate the loss, securing the premiums by a second mortgage on his new house. In those circumstances, said the judge, it would not be wrong to dissolve the marriage and a decree would be granted.

Mathias v Mathias [1972] 3 All ER 1, CA
A soldier H left his wife W after three years' marriage, to live with another woman X. Eight years later, wanting to marry X, H petitioned for a divorce and W opposed the petition because of the grave financial hardship she would suffer. The judge granted a decree nisi and W's appeal was dismissed. The main purpose of the statutory provision, said Stephenson LJ, was to protect middle-aged wives who might lose a widow's pension that they had come to rely on. Any divorced wife would suffer some financial hardship, but in the instant case W was a healthy young woman and quite capable of supporting herself if she chose. Moreover, in determining whether it would be wrong to dissolve the marriage the court had to consider the relatively short period of cohabitation and the much longer period of separation, together with the public interest in ending formally a marriage that had ceased to exist in any real sense.

Julian v Julian (1972) 116 SJ 763, Cusack J
H and W, both about 60 and in poor health, separated after more than 25 years' marriage, the day after H retired from the police force. Five years' later, H (who wanted to marry another woman) petitioned for divorce, but W successfully opposed it. The loss of the potential widow's pension would be a grave financial hardship to W, said the judge, whereas H (in view of his age and health) would not suffer any great hardship from being unable to remarry.

Banik v Banik [1973] 3 All ER 45, CA
H and W were married in India, but after five years W went to live with her brother's family and H came to England where he found work. H subsequently petitioned for divorce on the basis of five years' separation and W opposed the petition, claiming divorce would make her a social outcast in the society in which she lived. The judge said this could not amount to a defence and granted a decree nisi, but W's appeal was allowed. The Court of Appeal said "grave hardship" was a matter of fact and degree, and ordered a retrial before a new judge in which the truth of W's claims might be considered.

Banik v Banik (No.2) (1973) 117 SJ 874, Hollings J
The facts are as set out above. The judge found as fact that if the decree was granted, W would remain living with her brother's family in Calcutta in an unchanged position, dressing and being regarded as still a married woman. She would not be a social outcast, and the decree should therefore be granted subject to an order for H to make modest periodic payments.

Brickell v Brickell [1973] 3 All ER 508, CA
H and W were happily married for 16 years, but when H entered a business partnership with another woman P, W became obsessed with the belief that H and P were having an affair. W left H, but her obsession continued and her behaviour included disrupting H's business (a nursing home) to such an extent that it had to be wound up. After five years' separation H petitioned for divorce, and W opposed it on the ground that she would suffer grave hardship from the loss of a£200 pension. The Court of Appeal said the trial judge had rightly taken W's own conduct into account in deciding that it would not be wrong to dissolve the marriage, and affirmed his decree nisi.

Lee v Lee (1974) 5 Fam Law 48, CA
H and W, both in their 60s, had been married for over forty years. For the last twenty years they had lived apart, H with another woman and W in the former matrimonial home, on which H still paid the mortgage instalments and other outgoings. H sought a divorce, and proposed to provide W with an annuity to compensate for the loss of a civil service widow's pension, together with half the proceeds of the sale of the house. W successfully opposed the petition: H's proposals were not unreasonable, said the judge, but the sum proposed would not enable W to buy a one-bedroomed flat in the area. Moreover, W had the burden of looking after a seriously ill son S, and the disruption to her life would in itself be a grave hardship. H appealed, and by the time the appeal was heard S had died; his appeal was therefore allowed, and the case was remitted to the High Court for a financial provision order to be made.

Reiterbund v Reiterbund [1975] 1 All ER 280, CA
H petitioned for divorce after five years' separation, and W opposed the petition because it would remove her right to a state widow's pension. Because of W's mental health, she had never had (and was never likely to have) gainful employment in which she could build up her own pension rights; however, she would be entitled to supplementary benefit bring her total income up to at least the level of the widow's pension. The judge therefore found that W would not suffer grave hardship if the decree were granted, and the Court of Appeal agreed.

Jackson v Jackson [1993] Fam Law 675, CA
A 62-year-old W resisted H's petition for divorce after five years' separation, claiming it would cause her grave financial hardship by the loss of a possible widow's pension. The Court of Appeal doubted whether she would suffer any loss at all because of the social security system, but said that in any event it would not be grave hardship - the potential sum involved was only£15 per week, and W had an income of£60 already - and affirmed the judge's decision to grant the decree.

Rukat v Rukat [1975] 1 All ER 343, CA
After two years' marriage, W went back to her native Sicily to visit her family with their small daughter. H then wrote telling her not to return as he had fallen in love with another woman M, and W remained in Sicily for the next 25 years. When M died, W returned to England intending to reconstitute the marriage, and H petitioned for divorce on the basis of five years' separation. W claimed she would suffer undue hardship because of the religious and social attitudes to divorce in Sicily, where for the past 25 years she had kept up the pretence that all was well with the marriage. The trial judge granted a decree nisi in spite of this claim, and W's appeal was dismissed. There was no evidence that anyone in Sicily would know about the divorce, or (even if they did know) would think any the worse of W once she had explained that it was granted against her will and involved no fault on her part.

Le Marchant v Le Marchant [1977] 3 All ER 610, CA
The facts are set out above. H's petition for divorce on the basis of five years' separation was opposed by W, who claimed she would suffer grave financial hardship in losing the of the index-linked widow's pension rights under the scheme provided by H's employers. H eventually put forward a sensible proposal for compensating W for the losses she would incur, and on the basis of this proposal the Court of Appeal upheld the judge's decision to grant a decree nisi.

Garcia v Garcia [1991] 3 All ER 451, CA
H and W, living in Spain, agreed to separate on terms that inter alia H would pay for the maintenance and education of W's son S over the next ten years. H kept this agreement for five years, but then stopped paying. After a further three years, H (now living in England) was granted a decree nisi on the basis of five years' separation, and W sought reasonable financial provision for S. The judge said money unpaid under the original agreement could be claimed, as well as provision for the future, and the Court of Appeal agreed.

In an unreported case in Watford County Court, Judge Viljoen refused a decree absolute to a Jewish husband who had refused his wife a get, without which she would be unable to remarry in a synagogue or bear children recognised as legitimate under Jewish law. In so doing, the judge applied a dictum of Wall J earlier in the year and exercised his discretion to refuse a decree where it would cause hardship to one of the parties. (Independent news report, 24/12/99)

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