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Living Apart

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The parties are regarded as living apart if they are not living in "the same household". 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.

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.)

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 (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.

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.

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.

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