Santos v Santos

For divorce purposes, living apart ordinarily requires more than physical separation. The court must examine whether the parties recognise the marriage as subsisting. That additional element may depend on the attitude of one spouse alone, and communication of it to the other spouse is unnecessary. The question is one of fact and proof, assessed in the circumstances of each case. The statutory allowance for periods of resumed cohabitation does not reduce living apart to a purely physical test. Cases under the two- and five-year separation grounds require careful judicial scrutiny, particularly where the separation began voluntarily. The court should determine when the petitioner ceased to recognise the marriage as subsisting and instead regarded it as a mere shell.

The wife appealed from the dismissal of her undefended petition for dissolution of marriage. She relied on sections 1 and 2(1)(d) of the Divorce Reform Act 1969, alleging that the parties had lived apart for two years and that the husband consented. The trial judge had focused on periods when the spouses occupied the same room or bed during visits to Spain and had not addressed the legal meaning of living apart or section 3(5). The Court of Appeal considered whether physical separation alone sufficed, and whether the wife’s attitude towards the subsistence of the marriage was legally relevant.

1. Appeal allowed. The order dismissing the petition was set aside. A rehearing was ordered before a High Court judge, with the case transferred to the Family Division. There was no order as to costs.
2. Lord Justice Sachs, delivering the judgment of the Court, held that living apart in sections 2(1)(d) and (e) of the Divorce Reform Act 1969 ordinarily imports more than physical separation. The spouses must, in the vast generality of cases, have ceased to recognise the marriage as subsisting. The court deliberately left exceptional cases to be determined when they arise.
3. The additional element may be unilateral. It need not be communicated by words or conduct to the other spouse. Communication would tend to assimilate the separation grounds to desertion, whereas the statutory scheme treats desertion and non-fault separation as distinct grounds.
4. The court adopted the settled matrimonial approach reflected in the authorities. The relevant elements of consortium, including marital intercourse, living under one roof, society, protection, support, public and private recognition, and correspondence, are evidential matters whose weight depends on the circumstances. No single element is necessarily decisive.
5. Section 2(5), providing that spouses are treated as living apart unless living with each other in the same household, does not establish a purely physical test. Its use of “household” and the settled matrimonial meaning of “living together” supports the conclusion that spouses sharing a house may nevertheless be living apart if they are not living in the same household.
6. Section 3(5) means that resumed living together during periods not exceeding six months in all does not necessarily interrupt the continuity of the statutory separation. The trial judge had not been invited to consider that provision.
7. On rehearing, the judge must examine how the separation began, the petitioner’s attitude to the marriage at that time, and whether she later ceased to recognise the marriage as subsisting and intended never to return. Such petitions ordinarily require careful judicial scrutiny and should not be determined by routine rubber-stamping.

• Court of Appeal: Allowed the wife’s appeal from the dismissal of her undefended divorce petition, set aside the order below, and ordered a rehearing before a High Court judge. The case was transferred to the Family Division. No order as to costs.