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 constitute living apart. This ‘something more’ they recognised as the consortium vitae (in contrast to divortium a mensa et thoro) which comprised different elements, the presence or absence of which would go to show more or less conclusively whether the matrimonial relationship does or does not exist .
The court discussed the meaning of the phrase ‘living together’ when used in the Act: ‘. . use is again made of words with a well settled matrimonial meaning — ‘living together’, a phrase which is simply the antithesis of living apart, and ‘household’, a word which essentially refers to people held together by a particular kind of tie, even if temporarily separated . .’ and ‘. . ‘living apart’ . . is a state of affairs to establish which it is in the vast generality of cases arising under those heads necessary to prove something more than that the husband and wife were physically separated. For the purpose of that vast generality, it is sufficient to say that the relevant state of affairs does not exist while both parties recognise the marriage as subsisting. That involves considering attitudes of mind; and naturally the difficulty of judicially determining that attitude in a particular case may on occasions be great.’
Petitioning wife’s appeal against the dismissal of her undefended petition for dissolution of marriage, brought under section 1 and section 2 (1) (d) of the 1969 Act, alleging irretrievable breakdown of the marriage as shown by the fact that the parties had lived apart for a continuous period of two years immediately preceding the presentation of the petition and the husband consented to the grant of a decree. The judge had not allowed the petition on the basis that the parties had lived under the same roof.
Davies, Sachs, Ormrod LJJ
 Fam 247,  EWCA Civ 9,  2 All ER 246,  2 All ER 246,  2 WLR 889
Divorce Reform Act 1969 1 2(1)(d)
England and Wales
Cited – Gully v Dix; In re Dix deceased CA 21-Jan-2004
The claimant sought provision from the estate under the Act. She had cohabited with the deceased for many years, but had moved out several months before the death because of her concern for his drunkenness which lead to threats of self harm.
Cited – Witkowska v Kaminski ChD 25-Jul-2006
The claimant sought provision from the estate claiming to have lived with the deceased as his partner for the two years preceding his death. She appealed an order which would be enough to allow her to live in Poland, but not in England. She said . .
Cited – Dooris v Dooris CANI 18-Jan-2002
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.196716