EVERYDAY LAW: Grounds for a divorce
Today I respond to an email that I recently received. It reads:
“I have been married for 15 years but over the last three years I have had no real relationship with my husband. We sleep in different rooms. I have been told that I must separate for a year in order to get a divorce. Is that true?”
The main portions of the Family Law Act of Barbados that relate to the facts above are Sections 27 and 28. They stipulate:
27.(1) “An application by a party to a marriage for a decree of dissolution of marriage shall be based on the ground that the marriage has broken down irretrievably.
(2) “Subject to subsection (3), on an application for a decree of dissolution of marriage, the ground shall be held to have been established, and the decree shall be made, if, and only if, the court is satisfied that the parties separated and thereafter 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 dissolution of marriage.
(3) “A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
28. (1) “The parties to a marriage may be held to have separated, notwithstanding that cohabitation was brought to an end by the action or conduct of only one 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.”
The basis for obtaining a divorce is proof that “the marriage has broken down irretrievably”. Irretrievable breakdown is established by satisfying the court that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months.
The meaning of separation is dealt with in part by Section 28 above. It clearly indicates that “separation” does not mean physical separation by specifically providing that the parties to a marriage may be held to have separated “notwithstanding that they have continued to reside in the same residence”.
The classic statement of what amounts to separation under similar provisions of the Australian Family Law Act was given in a case called In the Marriage of Todd (No. 2) where Watson J. said:
“Separation means more than physical separation – it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the act where one or both of the spouses [have] 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.
“What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationship, and the nurture and support of the children of the marriage.”
It is obvious that separation as described above does not require physical separation. Indeed, physical separation may not necessarily amount to separation under Section 27. For example, where one spouse goes overseas to pursue studies or work, sometimes physical separation may exist for periods of more than one year. However, there may be no intention to sever the marital relationship and therefore there is no irretrievable breakdown or breakdown of the marriage.
On the other hand, the parties may continue to live under the same roof but one or both parties may intend to sever the marital relationship and may act on that intention.
• Cecil McCarthy is a Queen’s Counsel.