E and E
[2002] FMCAfam 33
•12 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| E & E | [2002] FMCAfam 33 |
| DISSOLUTION OF MARRIAGE – Living separately and apart. |
| Applicant: | N G E |
| Respondent: | M M E |
| File No: | ZD2487 of 2001 |
| Delivered on: | 12 February 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 5 February 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Cassells |
| Solicitors for the Applicant: | Terrill & Associates |
| Counsel for the Respondent: | Ms Sivyer |
| Solicitors for the Respondent: | Sivyer & Associates |
ORDERS
I find that the applicant husband is domiciled in Australia.
I find that the parties separated in October of 1993.
I formally find, relying upon the Certificate of Marriage, that the parties were married on the 6th of May 1978 in F, New Zealand.
I find that the marriage has irretrievably broken down.
I pronounce a decree nisi for the dissolution of the marriage.
I declare that I am satisfied that there are three children of the marriage under the age of 18 years, namely N A M E born the 13th of December 1984, J E F E born the 9th of March 1989 and S J A E born the 27th of July 1992.
I declare that I am satisfied that in all the circumstances proper arrangements have been made for their care, welfare and development.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ZD2487 of 2002
| N G E |
Applicant
And
| M M E |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for dissolution of the marriage of N G E and M M T E. The application has been brought by the husband and was filed on 22 October 2001.
The wife has filed a response to the application. She did so on the
5th of December 2001. In her response the wife has indicated that she wishes the Court to dismiss the application brought by the husband.
Accordingly this matter was listed for hearing before the Court on the 5th of February 2002. In support of his application the husband relied on the following documents:
i)His application for divorce filed on 22nd of October 2001;
ii)An affidavit sworn by him and filed on the 4th of January 2002;
iii)An affidavit of S C filed on the 4th of January 2002;
iv)An affidavit of A-C H filed on 4th of January 2002;
v)A further affidavit of the husband filed on the 24th of January 2002;
vi)An affidavit of B R G filed on the 1st of February 2002;
vii)An affidavit of M J McD filed on the 1st of February 2002;
viii)An affidavit of L M C filed on the 1st of February 2002.
At the hearing of the matter the husband gave additional sworn evidence and was cross-examined by counsel for the wife. None of the other deponents of affidavits relied on by the husband was required for cross-examination.
The wife relied on the following documents:
i)Her response filed on the 5th of December 2001;
ii)An affidavit sworn by herself and filed on the 1st of February 2002.
She gave additional oral evidence on the hearing of the matter and was cross-examined by counsel for the husband.
In addition a certified copy of the parties marriage certificate was filed. This indicated that the parties were married on the 6th of May 1978 at
S T Catholic Church, F in New Zealand. There is no dispute between the parties as to the date and circumstances of this marriage.
In his application for divorce the husband indicates that the parties separated in September of 1993. He also indicates that, as far as he is concerned, the parties have lived under the same roof after this separation for the period from the 13th of February 1999 until the
16th of September 2001, a period of thirty-one months.
In her response the wife has indicated that she disagrees with these assertions of fact made by the husband. It is her position that the parties finally separated on the 16th of September 2001 and that the thirty-one month period between the 13th of February 1999 and the
16th of September 2001 was a reconciliation of the marriage. Accordingly she asserts that there is not the requisite proof that the marriage between the parties has irretrievably broken down as required by the Family Law Act. It is on that basis she wishes the Court to dismiss the husband’s application for divorce.
The issue
The issue in this application for divorce is whether there has in fact been made out the appropriate ground for dissolution, that is that the marriage has broken down irretrievably, pursuant to section 48(1) of the Family Law Act. The ground of irretrievable breakdown is established and a decree nisi may be pronounced 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 proceeding the filing of the dissolution application.
The law
Section 48(1) of the Family Law Act states as follows:
An application under this Act for a decree of dissolution of marriage shall be based on the ground that the marriage has broken down irretrievably.
Section 48(2) further provides that the ground will be established 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 that 12 months immediately proceeding the date of the filing of the application of dissolution of marriage.
The meaning of separation in the context of the dissolution of marriage pursuant to the Family Law Act is defined in section 49 of the Act. Section 49(1) provides:
The parties to a marriage are held to have separated notwithstanding the cohabitation was brought to an end by the action or conduct of only one of the parties.
The Family Law Act also recognises the parties to a marriage may be separated under the one roof. Section 49(2) of the Act provides as follows:
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.
Accordingly it is clear that separation may be proved, notwithstanding that the cohabitation of the parties was brought to an end by the actions or conduct of one party only and notwithstanding the parties have continued to reside in the same residence or that either party has rendered some household services to the other. The Act specifically provides for such matters in subsections (1) and (2) of section 49.
Separation has been defined in the cases and I refer specifically to Todd and Todd (No. 2) 1976 FLC 90-008. The definition of separation in that case was varied by the Full Court of the Family Court. In Pavey v Pavey (1976) FLC 90-051. In that case it was said as follows:
… “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 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. 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 relationships and the nurture and support of the children of the marriage.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
The passage that I have just read from Pavey v Pavey establishes explicitly two requirements for separation, namely intention and action. In addition to that requirement, it is sometimes said there is a further requirement and that is a requirement of communication. This was referred to by the Full Court in the matter of Falk v Falk (1997) FLC 90-247 at 76,333 as follows:
“Where one party only has formed the relevant attitude and intention that should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.”
In each case, the question of whether a separation has occurred, is a question of fact.
Living separately and apart for the purposes of section 48 (2) involves more than just physical separation. It involves the breakdown of the marital relationship, what is usually known by the Latin phrase consortium vitae.
In Crabtree v Crabtree (No. 2) (1964) ALR 820 Selby, J. discussed the meaning of this phrase in the following terms:
“…the question of consortium is … a different matter from that of physical separation. Consortium has been defined as a partnership or association; but in the matrimonial sense it implies much more than these rather cold words suggest. It involves a sharing of two lives, a sharing of the joys and sorrows of each party, of their successes and disappointments. In its fuller sense it implies a companionship between each of them, entertainment of mutual friends, sexual intercourse – all those elements which, when combined, justify the old common law dictum that a man and his wife are one person. It is not necessary that all these elements should be present to establish the existence of matrimonial consortium; one or very few may exist and they may show that the matrimonial consortium has not been destroyed; that it is still alive, although in a maimed and attenuated form.”
In Batty v Batty (1986) FLC 91-703, Wilczek (75,087) provided a comprehensive list of the various elements that comprised a consortium vitae. These are:
i)Sexual intercourse;
ii)Dwelling under the same roof;
iii)Giving society and protection to each other;
iv)Economical or fiscal unity or cooperation;
v)Public recognition of each other as spouses;
vi)Private acceptance of each other as spouses;
vii)Communication between the parties sharing any separation;
viii)The nurture and support of the children of the marriage;
ix)The extent of what marital services are still rendered by the parties to each other.
The presence of some of these elements is not inconsistent with a breakdown of a consortium vitae. In particular the rendering of some household services is not inconsistent with such a breakdown (see section 49(2)) nor is a continuation of casual acts of sexual intercourse (see Todd v Todd (No. 2) (1976) FLC 90-008). Moreover it is not necessary in order that the consortium continue for all the above elements to be present. However, depending on the circumstances, the absence of any of them might be evidence of marital breakdown and the greater the number that are absent the stronger the evidence is of that breakdown. Again it is a question of fact in the context of the evidence in each case.
In this case one of the central issues is whether or not the consortium vitae between the parties was resumed during the period of thirty one months when they lived together at the same premises between the 13th of February 1999 and the 16th of September 2001. I will turn to the evidence in regards to this matter shortly.
Section 50 of the Family Law Act permits separated spouses to resume cohabitation for a period of up to (but not including) three months without this annulling any prior period of separation for the purposes of building up twelve months separation sufficient to support a successful application for dissolution of marriage under section 48(2). However any greater period of cohabitation annuls the prior period of separation, and thus it also annuls any entitlement to a decree of dissolution.
Once the consortium vitae between spouses has ended it will not be restored except by an unequivocal intention on the part of both parties to resume the marriage together with some overt act, such as a resumption of cohabitation. In this regard see Mummery v Mummery (1942) P.107 at 110 where Lord Merriman P said as follows:
“A resumption of cohabitation must mean resuming a state of things, that is to say, setting up a matrimonial home together, and that involves a bilateral intention on the part of both spouses so to do.”
This passage was approved by McGovern J. in Feltus v Feltus (1977) FLC 90-212.
A further issue in this case is what was the intention of each of the parties as regards the separation when they resumed living together on the 13th of February, 1999 and whether in particular the husband communicated his intention adequately to the wife.
Background
The husband was born on the 30th of September 1957. The wife was borne on the 28th of February 1957. As I have already indicated the parties were married on the 6th of May 1978 at S T Catholic Church, F in New Zealand. The parties are the parents of six children namely
K R M E born the 5th of November 1978, G R T E born the 2nd of January 1981, R J E E born the 21st of August 1982, N A M E born the 13th of December 1984, J E F E born the 9th of March 1989 and S J A E born the 27th of July 1992. Of these children only N, J and S were under the age of 18 years at the time of the husband’s application for divorce.
Both the husband and the wife are practising Catholics.
It is common ground that whatever the status of their subsequent living together may be that the parties initially separated in October of 1993 when the husband left the then matrimonial home in H, New Zealand.
On the 20th of July 1995 the parties entered into a written agreement that determined which of them should have the custody of the six children, what access the other should have to the children and divided matrimonial property between them. Pursuant to the agreement the wife had custody of the six children. This agreement was prepared by solicitors and registered in the appropriate court in New Zealand.
It is common ground that from 1993 until the 13th of February 1999 the parties lived separately and apart in New Zealand. On this later date the parties came to live in Sydney New South Wales and began to live together with the children at a property situated at 16 D Street, W R. At this time the husband obtained employment with Telstra in Australia.
Clearly it is the status of the relationship between the parties from the 13th of February 1999 onwards that is the central issue in this case. However at this stage it is appropriate that it be noted that it is common ground that upon living together in Sydney the parties each had separate rooms and that there has been not sexual relations between the two of them since 1997. The husband acknowledges that the wife did most of the cleaning, washing and cooking for both him and the children. In other aspects there are significant divergences in the evidence of the parties in respect of the nature of their relationship in Sydney and as a result it will be necessary for findings of fact to be made.
In February of 2001 the husband and wife and four of the children of the marriage came to live in D. Once again they occupied the same premises situated at 44 C Street, L. On this date the wife left the premises at L and moved into a rented property at 7 C Crescent, N. It is this date that the wife asserts is the commencement of the period of separation between the parties.
The husband’s case
The husband denies that the period from 13th of February 1999 until 15th September 2001 was a reconciliation of the marriage between him and the wife. He asserts that both he and the wife were closely involved with the care of their six children both before and after separation. As a result, after a period of unemployment in New Zealand, when the possibility of employment arose in Australia, he was anxious that the children should come with him so that he could maintain his relationship with them. The only possibility of this occurring was if the wife came as well. Due to his financial position he was not able to buy a separate house or to provide separate accommodation for her and the children and as a result, for the sake of financial convenience, he proposed that he and the wife should share a house in Sydney. It is the husband’s position that he and the wife remained separated under the one roof both in Sydney and Darwin. Once in Sydney he purchased the property in W R in his own name and with his own funds.
In order that the wife would be under no misapprehension regarding the status of the relationship between them and would not believe there had been a reconciliation between them, the husband deposed that he negotiated an agreement between himself and the wife. This agreement was prepared through an intermediary and was reduced to writing. The husband deposed that both parties signed this agreement. However the husband said that he had not been able to locate the original signed document although an unsigned copy is annexed to his supporting affidavit. This agreement was dated the 2nd of November 1998. The text of the agreement is as follows:
The parties marriage ended in separation several year ago. A separation agreement was signed at the time, and still applies. The present agreement covers a situation which was not anticipated at the time of the original separation agreement and is intended to provide special conditions to apply while the parties are living overseas. Any terms of this agreement which contradict or modify the original agreement are intended to supersede the original agreement only for the time during which the parties share accommodation overseas.
1) N E will be accepting a job in Australia.
2) The parties recognise that the children’s development may suffer if they do not have access to both parents. The children and M will therefore move to the city in which N is working.
3) Neither of the parties can afford the cost of separate accommodation. The parties recognise that, despite their not being reconciled, it is necessary to share accommodation while overseas.
4) While sharing accommodation overseas, N will:
· Provide sufficient income to M to allow her to support herself and the children at least as well as she was able to prior to leaving New Zealand.
· Provide an appropriate vehicle for M’s use.
· Ensure M has a room for her sole use, and respect M’s privacy in that room.
5)While sharing accommodation overseas, M will:
· Keep the accommodation clean, except for N’s private space.
· Respect N’s privacy by keeping out of the area he nominates as his private space.
· Cooperate in making the Australian experience an intellectually and emotionally enriching experience for the children.
6)N will ensure that the costs of transporting M, the children, and their possessions to Australia and the costs of returning them all to New Zealand after two years, are paid by the employer or himself.
7)The parties intend to share accommodation for about two years, matching the duration of N’s employment contract. After that, M will be free to return to New Zealand with the children or, if the parties agree, they may continue the shared accommodation arrangement. If no additional written agreement is made, and the parties continue to share accommodation, they will be doing so under the terms of this agreement.
8)Nothing in this agreement is intended to nullify the separated status of the parties. In particular, neither of the parties will have any claim over the other’s assets or will have responsibility for the other’s debts. Each will continue to have full responsibility for managing their own finances, except for N’s responsibilities under clause 4.
9)M retains the rights and duties of custodial parent. However, the parties will cooperate to give the children appropriate time with each parent.
The existence of this agreement was not denied by the wife. I accept that the agreement was signed by both parties in H, New Zealand before they came to Australia.
On the 18th of November 2000 the husband deposes that a further agreement was negotiated between him and the wife in anticipation of him coming to D to pursue other employment opportunities. This document was executed by both parties on the 27th of December 2000 and witnessed by one of the parties’ children. The text of this agreement is as follows:
“The parties marriage ended in separation several years ago. A separation agreement was signed at the time, and still applies. This present agreement covers a situation which was not anticipated at the time of the original separation agreement and is intended to provide special conditions to apply while the parties are living overseas. Any terms of this agreement which contradict or modify the original agreement are intended to supersede the original agreement only for the time during which the parties share accommodation overseas.
On November 02, 1998 the parties signed an agreement (text attached) defining the basis upon which they would be sharing accommodation in Australia. That agreement allowed for further agreements to be made. This document modifies the November 02 agreement and supersedes it to the extent that it is incompatible with the earlier agreement.
M has decided that she chooses to stay in Australia after the two year initial contract period has expired. After that time N will no longer have employer assistance to return to New Zealand. N is not willing to hold an indefinite liability for repatriating M and the children.
M is also considering undertaking retraining, with a view to returning to the workforce. At present, no provision is made for N supporting such retraining.
The parties therefore wish to supersede the provisions of clause 6 of the November 02 agreement, and to agree to an additional retraining provision.
It is agreed that:
1) From 01 February 2001 N will no longer be liable for the costs of transporting M and the children back to New Zealand, should M decide to return.
2) From 01 February 2001 N will pay any reasonable costs incurred for course fees and materials to allow M to retrain to re-enter the workforce. N will not be liable to pay if paying the costs would cause him hardship.
3) All provisions of the November 02, 1998 agreement and of the parties’ separation agreement which do not conflict with this agreement remain unaltered.
4) The parties agree that they have each had the opportunity to seek independent legal advice.”
Once again the existence of this document was not denied by the wife. I accept that the agreement was signed in Sydney before the parties came to D.
Telstra paid the necessary travel expenses for the wife and children to come to Sydney from New Zealand. The husband deposed that he told Telstra that Mrs E was his ex wife and nothing further. It is his position that Telstra accepted this situation without demur.
It is the husband’s position that in both Sydney and Darwin he and the wife kept their finances separate and did not engage in any outside social engagements together apart from functions involving their children. These functions included a daughter’s sixteenth birthday, and a reconciliation and communion for another child.
The husband accepts that he and the wife attended Sunday Mass together with the children regularly and sat together in Church.
He further concedes that the wife did ironing, washing and cooking for him and that he ate regularly with her and the children. The house in Sydney had six bedrooms, two of which were occupied separately by him and the wife. The husband deposed that he never went into the wife’s bedroom. It is the husband’s evidence he had little personal interaction with the wife within the confines of the house. He further says that he never invited any of his friends to the house.
Shortly after arriving in Australia in 1999 the husband met Sharon C. The husband deposes that he and Ms C commenced a defacto relationship shortly thereafter. Whilst in Sydney the husband deposes that he would spend up to three or four nights in Ms C’s home. Ms C has now come to Darwin where she has obtained employment.
In her affidavit, which was not challenged by the wife, Ms C confirms that she and the husband would spend up to three or four nights together each week in Sydney from May 1999 to January 2001.
Both the husband and Ms C depose that they have holidayed together in New Zealand and that Ms C has attended work functions as the husband’s partner. Ms C and the husband have purchased a piece of real estate together in Sydney.
The wife’s case
It is the wife’s position, that the first she knew of the separation between her and the husband was in September of 2001 when she was dismissed by the husband from the house she was sharing with him in L. In her affidavit of evidence she says as regards the position prior to September of 2001 as follows:
“The respondent never said to me: “I consider our marriage is over”. Nor did he say to me: “I want a divorce” nor did he ever say to me: “You are no longer my wife”. In his own mind he may have decided the marriage was over however he never clearly communicated that to me nor did he ever say that to me specifically.”
The wife agrees that in both Sydney and Darwin the parties had separate bedrooms. She also gave evidence under cross examination that between 1993 and 1997 there were some instances of sexual relations between her and the husband. However she said that these instances ceased in 1997 when the husband said to her: “we had better stop doing this, it is giving you the wrong impression.”
The wife also concedes that the husband commenced a relationship with Ms C in Sydney. She disputes the number of evenings per week which the husband would sleep over at Ms C’s home. However she concedes the husband would spend regular nights at Ms C’s home.
The wife also agrees that in Australia she did not attend any social or work occasions with the husband.
In other respects she agrees with the evidence of the husband regarding domestic arrangements in respect of cooking, washing, ironing and the consumption of meals. She also agrees that the parties attended Church together regularly and a number of functions involving the children, particularly Church functions.
It is her position that in spite of the relationship between the husband and Ms C she remained the husband’s wife. She gave evidence, which the husband did not contradict, that he had an extra-marital liaison prior to the separation of 1993.
The wife is a devout Catholic. It is her belief that marriage is a covenant between God and man and as such is unbreakable. I respect her views in this regard but I am duty bound to apply the law as set out in the Family Law Act to the facts as I find them.
Conclusions
In my view the evidence that has been presented to the Court does not establish that there has been a resumption of the consortium vitae between the parties as a result of them living together in Sydney and Darwin from the 13th of February 1999 until the 16th of September, 2001.
In respect of the various elements comprising consortium vitae as listed by Wilczek, J. in Batty (supra) I make the following findings.
There has been no sexual intercourse between the parties since 1997. The parties have lived under the same roof, however they have maintained separate bedrooms. I accept the husband’s evidence that his motivation for this arrangement was to enable him to maintain his relationship with the children of the marriage when he came to Australia. In the wife’s phrase if he wanted to have access to his children in Australia “he had to have me (the wife)”. Sharing a home is of course an important element in respect of establishing consortium vitae between parties. However as the relevant provisions of the Family Law Act indicate it is not in itself determinative of this fact. It is necessary for the Court to look at all the circumstances of the matter. The circumstances of the parties in this case may have been unusual but I accept the evidence of the husband that they were dictated primarily by his financial considerations. He may be regarded by some as exploitative of the wife but that is not a relevant consideration.
In this case there is no evidence of the parties mutually giving society and protection to each other. There is no evidence in either case that they spent time together at home in the pursuit of mutual interests or domestic concerns. I accept the husband’s evidence that whilst under the one roof they lived separate lives and that their communication was confined to matters relating to the care of the children. I also accept the husband’s evidence that he has spent extensive periods of time in the company of Ms C.
There is in my view scant evidence of any fiscal unity or cooperation between the parties. The husband went to great lengths to ensure that the house that was purchased in Sydney was in his name alone. The agreement of the 2nd of November 1998 delineated the husband’s position as far as he believed his financial responsibility to maintain the wife and the children was concerned. Clearly this financial obligation subsisted regardless of whether or not he resumed his marriage with the wife.
The husband met Ms C shortly after having arrived in Sydney. The wife subsequently became aware of her existence and the nature of the husband’s relationship with her. The wife categorises Ms C as the husband’s mistress. I accept the husband’s evidence and evidence of the various witnesses on whom he relies that in a public sense Ms C was recognised by the husband’s friends and family as being his partner. Ms C and the husband purchased real estate together and holidayed as a couple. The husband did none of these things with the wife.
Apart from attending Church together the parties, outside of the home, did not engage in activities together. I accept the evidence of the husband that he did have a conversation with his parish priest and explained to the priest his somewhat unusual domestic situation. Given that both parties are practising Catholics and have brought their children up within the Catholic faith it is to be expected that they would all attend Mass together and that both the husband and wife would attend major events such as the various children’s communions. In my view the communications between the parties has been limited to matters concerning the children.
I accept the evidence of the husband that his motivation in seeking to have the wife and children live with him in Sydney and then Darwin was so that both he and the wife could maintain their separate relationships with the children. I accept that if the husband took the job with Telstra in Sydney the only way he could maintain the regular contact with the children that he had enjoyed in New Zealand was if the children came with him and the only possibility of this occurring was if the wife came too.
It is clear that during the period the husband and wife lived together that the wife rendered a number of important marital services to the husband. These included cooking, washing and ironing. Section 49(2) of the Family Law Act makes it clear that the performance of these tasks is not in itself determinative of whether or not separation has occurred. As I say the husband may be regarded as insensitive and exploitative of the vulnerability of the wife but in my view when the circumstances of the parties’ resumption of cohabiting are looked at as a whole, the performance of the wife of these household tasks for the husband does not in itself result in a resumption of the consortium vitae that was broken down in 1993.
The husband denies that on his part there was any private acceptance by him of the wife as his spouse. It is the wife’s position that in February 1999 she assumed that the same dysfunctional marriage that had existed between the parties in 1993 had been resumed and that the husband did nothing either by his actions or words to dissuade her from believing this state of affairs existed. Both before 1993 and between 1999 and 16 September 2001, when the husband had been living with the wife the husband had been engaged in serious sexual relations with women other than his wife. On this basis the wife argues that there was no difference between the pre-1993 situation and the situation between 1999 and September of 2001. The essence of the wife’s case is that the husband did not communicate to her that the relationship that was subsisting between them was something other than reconciliation. She concedes that although the relationship between the parties was far from perfect that it did still constitute in her mind a marriage, albeit a dysfunctional one and that she and the husband had resumed being a couple.
In my view the wife’s position flies in the face of the two written agreements of the 2nd of November 1998 and the 18th of November 2000. I am satisfied that the wife signed each agreement. I am also satisfied that the first agreement came about as a result of detailed negotiations between the parties. It is hard to conceive of any more concrete way in which the husband could have chosen to convey to the wife his intention and desire not to resume the consortium vitae between the parties than the content of these written documents. Both of which explicitly set out the nature of the arrangement between the parties as far as the husband was concerned. As has already been indicated, for there to be a resumption of the consortium vitae between spouses there must be a bilateral intention on the part of both of the parties for this to occur. In my view this is clearly not the case in this matter.
In my view the nature of the wife’s beliefs are such that she would not accept that any action on the part of the husband would be sufficient to break the bond of marriage between them. The arrangement that existed between the parties from February 1999 to September 2001 may have been one-sided and indeed may have exploited the wife’s desire to resume life with the husband as his spouse, however the written agreements clearly set out the nature of that arrangement from the husband’s point of view and say explicitly that the sharing of a dwelling by the parties was not a reconciliation from his point of view. To my mind the documents clearly communicate this intent of the husband and there is nothing otherwise in the relationship between the parties by deed or action to indicate a contrary intention on the part of the husband.
For all these reasons I am satisfied that the husband is entitled to a decree nisi. Accordingly I make the orders that are set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Brown FM
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