Betty and Boris separated in October 2016. Betty applied for a divorce in November 2018. When a spouse applies for a dissolution of marriage, it must be granted if the parties have been living apart for two years. The Family Court granted Betty her application. However, Boris appealed the decision.‍

Background

‍Boris agreed that he had been separated from Betty since October 2016, but he did not believe they had been “living apart” as required by the statute. Boris had not been allowed to live in the family home because Betty had obtained a Police Safety order and a temporary protection order against him following their separation. He proposed that he had not been “living” because his life had been in a “legal limbo”. During the time he was physically apart from Betty, he didn’t have access to his home, finances, personal and financial records. Boris analysed the definitions of “living” and “apart” in the Oxford Dictionary to progress his argument. Boris claimed that the definition of “living apart” required that he and Betty were free and able to live apart and to be free from the control of the other spouse.

‍What did the Court decide?

‍The Court did not agree with Boris’ interpretation of “living apart”. They held his interpretation stretched the meaning of the phrase by reading too much into those words. They found it did not align with previous cases. It also did not align with Boris’ understanding as a lay person because he had stated that he had been living apart from Betty since October 2019 in his prior evidence. When a Court is asked to determine whether a couple have been living apart, they are required to consider two elements:

       
• a clear indication from one or both parties to the marriage that one or both no longer wish to co-habit; and
       
• two years separation.

The Court felt there was no room in the test for the qualitative analysis that Boris had proposed. The first element only requires one party to the marriage to no longer wish to co-habit. The other spouse does not get a veto to that decision. As Betty had obtained a Police safety order and a temporary protection order, it was very clear she no longer wish to co-habit with Boris. The definition of living apart is often misunderstood. The test of “living apart” may still be satisfied if a couple continues to live in the same home but can show they are living separately. For example, a wife may live upstairs in the home while her husband lives downstairs. Other factors, such as whether they share meals, will also be considered. This is an area where it is good to seek legal advice at an early stage.

‍Outcome

‍The appeal was dismissed.