A husband in a recent Federal Magistrates Court matter applied for divorce in December 2011. He claimed the parties separated in July 2009.

The wife filed a response disputing that the parties had been separated for the required 12 months when the husband’s application was filed. The wife’s argument was that although living separately, the marriage continued as:-

• The parties continued a sexual relationship.
• The parties socialised together.
• The parties operated a joint bank account.

The Family Law Act provides that to be “separated” three conditions must be met:-

• There must be an intention to separate.
• The party must act on that intention.
• The party must communicate that intention to the other party.

In order to be successful in his application for divorce, the husband must show that the parties have separated and have lived separately for 12 months.

The parties both agreed that following physical separating and his moving out of the home, they continued to have regular sexual relations and held themselves out to the world as a couple. The wife’s evidence was that the husband did not raise the issue of divorce until shortly before making his divorce application.

The judge held that the parties were acting as a married couple until shortly before the husband filed his application as they:-

• Maintained a regular sexual relationship.
• Attended social functions together.
• Operated a joint bank account.

The husband did not meet the threshold test that the parties must be living separately for 12 months prior to making a divorce application and accordingly, the husband’s application was dismissed.