Appeal against dismissal of undefended divorce petition, based upon two years’ separation and consent. The parties still occupied the same property, but said that they lived separate lives.
Held: The parties to a marriage shall be treated as living apart unless they are living with each other in the same household. References to parties to a marriage living with each other shall be construed as references to their living with each other in the same household and as husband and wife.
Higgins J said: ‘The degree of separation or separate living required to establish as a fact that the parties are living apart in different households cannot be overstressed. Various elements will go to prove it. The potential circumstances are so great that it is not possible for this court to state categorically what circumstances will ultimately prove ‘living apart in separate households’ and what will not. Some factors will be common to most situations, for example, sleeping in separate bedrooms and the absence of marital relations, though the latter could occur yet the parties are in fact living apart. Cases in which the parties have divided the premises into ‘his’ and ‘hers’ into which the other does not stray, may, depending on the other circumstances, more easily lead to a conclusion that the parties are in fact living apart in separate households. In petitions grounded on separation for periods of two or five years and in which the parties to the marriage have during the whole or any part of the relevant period lived under the same roof or in the same residence and it is proposed to rely on evidence that the parties were nonetheless living apart, the facts relied upon to establish living apart in separate households for the whole or part of the relevant period should be pleaded separately in the Petition in sequential numbered paragraphs. Thus the court and the parties will be aware of the allegation and what is alleged in support of it.’
Judges:
Higgins J
Citations:
HIGF3570, [2002] NICA 4
Links:
Statutes:
Matrimonial Causes (Northern Ireland) Order 1978
Jurisdiction:
Northern Ireland
Citing:
Cited – Santos v Santos CA 16-Feb-1972
The court considered whether one party who lived in Spain and the other who lived mainly, but not exclusively, in England, were, despite several periods of close cohabitation, living apart.
Held: Mere physical separation without more did not . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 08 June 2022; Ref: scu.189644