ORDERS

The Application for Divorce filed on 2 December 2011 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Campbell & Cade is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Application

This is an Application for Divorce. The Husband, who is the Applicant, claims that the parties separated on 25^th July 2009, when he moved out of the matrimonial home.

The Wife has filed a Response in which she disputes the Husband’s claim that they have been separated for the requisite period of twelve months. It is her contention that, notwithstanding the fact that the Husband moved out of the matrimonial home on 25^th July 2009, she believed that the marriage was continuing even though they were living in separate homes.

Background

The parties were married in (omitted) on (omitted) 1982. They commenced living in Australia in 1987. There are seven children of the marriage, of whom six are adults. The youngest child, a daughter, is 17 years of age and is in her final year of high school. She lives with the Mother.

The Husband left the former matrimonial home on 25^th July 2009 and has lived in another suburb of Sydney ever since.

On 2^nd December 2011 the Husband filed an Application for Divorce in which he claimed that the parties separated on 25^th July 2009.

The Wife filed a Response on 4^th January 2012, disputing the Husband’s claim that they have been separated for 12 months, although she concedes that the Husband moved out of the family home on 25^th July 2009.

In her Response, the wife claims:

Since that date, the Applicant and I continued to have a sexual relationship.

Since that date, the Applicant and I continued to attend social events together, such as lunches, dinners and karaoke.

The Applicant and I continued to have a shared bank account.

At the time when the Applicant moved out of the family home, he did not say anything to me about separation and I believed our marriage was continuing even though we were living in separate homes.

The Applicant first told me he wanted a divorce in September 2011.

On the return date, 21^st February 2012, Registrar Clarke noted that a Response had been filed and transferred the proceedings to this Court.

The Application was heard as a defended Application on 28^th May 2012.

Evidence

The Husband relied on his affidavits of:

10^th April 2012; and

12^th April 2012.

The Husband gave oral evidence with the occasional assistance of an interpreter in the (omitted) language and was cross examined by the Wife.

The Wife relied on her affidavits of:

28^th March 2012; and

9^th May 2012.

The Wife gave oral evidence with the assistance of an interpreter in the (omitted) language and was cross-examined by the Husband.

It was clear that each party possessed a reasonable facility in the English language but preferred the assistance of an interpreter for the unusual and technical circumstances of a court hearing.

It was the Husband’s evidence that he explicitly informed the Wife that he sought a divorce when he moved out of the former matrimonial home on 25^th July 2009. He conceded that the parties had continued to have a sexual relationship since separation, such activities taking place mainly in places away from the former matrimonial home.

The Husband agreed that he and the Wife had continued to attend social events, such as lunches, dinners and karaoke. He also conceded that the parties had operated a joint bank account, but said that had only been used to transfer funds for “child maintenance” and had since been closed.

The Husband also annexed to his affidavit a letter dated 20^th March 2012 from a solicitor, one (omitted), advising that he had been instructed to act for the Wife in respect of a proposed property settlement. The letter says, in part:

We are instructed that:-

1.The parties married on 12/8/1982.

2.The marriage has broken down.

3.The parties separated on the

4.There is no likelihood of a resumption of cohabitation.

5.The parties have been married for a period of 29 years.

The Wife deposed in her affidavit of 28^th March 2012 that she and the Husband continued to have sexual intercourse on a regular basis, as recently as 13^th November 2011, when the parties had attended their second daughter’s wedding as a couple. They had stayed in the one hotel room.

It was agreed that the Husband closed the joint bank account on 22^nd March 2012.

The Relevant Law

The date of separation between the parties is the issue in this case, as it is in so many defended applications for divorce. It is not necessary for the Court to establish an actual date of separation as long as the Court can be satisfied that the parties separated at least twelve months prior to the date of filing the Application. Unless it can be shown that the parties have been separated for at least twelve months, the Court has no power to dissolve the marriage. Establishing that separation is a matter of fact.

The importance of establishing a separation of at least twelve months is made clear by s.48 of the Family Law Act, which states:

(1)An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

(2)Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, the divorce order shall be made, if and only if, the court is satisfied that the parties separated and lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

(3)A divorce order shall not be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

The use of the words “if and only if” imposes a mandatory obligation on the Court to be satisfied that there has been a separation for no less than twelve months. The Court has no power to shorten the time or backdate the period.

Separation is defined by s.49 of the Act:

(1)The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

(2)The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

Physical separation is neither a necessary nor a sufficient condition to establish a separation for the purposes of subsection 48(2). The parties to a marriage may regard themselves as being married even though they are living apart for a period of time.

There are three elements which constitute a finding that separation has occurred:

An intention to separate;

Action upon that intention; and

Communication of that intention to the other party.

In Todd and Todd (No 2), Watson J held:

Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed.

The Full Court of the Family Court of Australia has made it clear that there is also a need to communicate the intention to separate to the other party. That communication can be spoken or unspoken (see Falk and Falk).

The law is unclear about the extent to which the breakdown of the marital relationship must be communicated to other people. In Fenech and Fenech, Evatt CJ held:

To comply with the Act there must be some overt separation, some evidence that there are two households, not one…

The fact that parties engage in acts of sexual intercourse after separation is an important but not a decisive factor in deciding whether the marital relationship, or consortium vitae, has ended.

In Bell and Bell, Baker J held:

Sexual intercourse is only one of a number of elements which cumulatively make up the consortium vitae. It cannot be said that sexual intercourse between partners is the sole basis of a marriage. Once cohabitation has ceased and one of the partners has by his conduct rejected the marital relationship sexual intercourse between the husband and the wife will not in my view of itself have the effect of a resumption of cohabitation.

This passage was expressly approved by the Full Court (Evatt CJ, Fogarty and Maxwell JJ) in Spanos and Spanos.

Conclusions

It is incumbent on the Applicant to prove that the parties have separated and lived separately and apart for a period of twelve months “immediately preceding the date of the filing of the application for the divorce order” (s.48(2)). It is not sufficient to show that the parties have been separated for a period of twelve months prior to the date of the hearing. If the parties were not separated for twelve months, the matter cannot be cured by an adjournment.

In this case, the Court must look at the date the Application for Divorce was filed, which was 2^nd December 2011. Thus, the Applicant must show that the parties had separated and had lived separately and apart for a continuous period from at least 1^st December 2010.

The evidence does not allow that finding to be made. It is common ground that the Husband moved out of the former matrimonial home on 25^th July 2009. However, it is the Wife’s evidence that she wanted the marriage to continue at that stage.

It is common ground that the parties continued to have regular sexual relations at least until 13^th November 2011 and they held themselves out to the world as a couple by attending various social functions together, again, at least until 13^th November 2011.

It is the Wife’s evidence, but denied by the Husband, that he did not raise the question of divorce until September 2011.

The parties operated a joint bank account, mainly for the purpose of providing child support or child maintenance for their youngest daughter until 22^nd March 2012.

By March 2012, however, it is clear that the Wife intended to end the marital relationship, as she instructed (omitted), the solicitor, to commence property proceedings.

It is not necessary for the Wife, who is the Respondent, to establish a date of separation. It is necessary for the Applicant to establish that the parties lived separately and apart for a period of twelve months prior to the date of filing of the Application for Divorce, on 2^nd December 2011.

In my view, the parties were still acting as if they were a married couple at least until November 2011, by:

maintaining a regular sexual relationship;

attending social functions together;

staying in hotel rooms together; and

operating a joint bank account.

In all the circumstances, the Husband has failed to show that the parties lived separately and apart for the requisite period of twelve months. Accordingly, the requirements of subsection 48(2) of the Act have not been met and the Application for Divorce must be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment ofScarlett FM

Date: 29 May 2012