G and K

[2008] FCWA 65

[2008] FCWA 65

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	G and K [2008] FCWA 65
CORAM	:	PENNY J
HEARD	:	3 JUNE 2008
DELIVERED	:	10 JUNE 2008
FILE NO/S	:	PT 628 of 2008
BETWEEN	:	G
Applicant/Wife
AND
K Respondent/Husband
Catchwords:

Wife's application for divorce - effect of Muslim divorce (talaq) - have parties lived separately and apart for 12 months berfore application filed - effect of idda - application dismissed - grounds not established

Legislation:

Family Law Act 1975 - s 48, s 49

Category: Not Reportable

Representation:

Counsel:

Applicant:	Mr N Anderson
Respondent:	Self Represented Litigant

[2008] FCWA 65

Solicitors:

Applicant:	Calverley Johnston
Respondent:	Not Applicable

Case(s) referred to in judgment(s):

Pavey and Pavey (1976) FLC 90-051
Todd and Todd (No. 2) (1976) FLC 90-008

[2008] FCWA 65

1 On 17 April 2008 the wife filed an application for divorce. In that document, affirmed by her, she stated that

• The parties separated on 15 April 2007

• She considered the marriage over on that date

• She and her husband have lived under the same room but not as husband and wife since the date of separation

2 The husband and wife are both Muslims. According to the Certificate of Islamic

Divorce, the Islamic Divorce (the Talaq) took place on 15 April 2007. The Talaq was completed and finalised on 23 June 2007. On 9 February 2008 the husband, without the wife’s consent, travelled [overseas] with the three children of their marriage. They have not returned to Australia. The wife is attempting to obtain orders for the return of the children [from overseas]. A divorce order will assist her in this regard.

3 The application for divorce was served upon the husband’s de facto partner, who

is still living in Perth. The husband then wrote to the Court stating that he wanted an extension of time to lodge a response. His reasons for wishing to oppose the application for divorce were that the parties had not been separated 12 months since the date of separation as alleged by the wife. It was the husband’s case that the official date of separation was 23 June 2007. Up until this time, he says, he and the wife co- habited as husband and wife.

4 The wife’s application was then adjourned and the wife was ordered to file and

serve an affidavit addressing, in particular, the issue of separation under the same roof.

5 In that affidavit, filed on 23 May 2008, the wife, for the first time, deposed to the

fact that she and the husband lived separately and apart under the same roof after separation. In that affidavit the wife stated that the parties had previously separated in early 2006 and reconciled in June of that year. At the end of March 2007 the relationship had not improved. At the hearing the wife stated that she asked the husband to get some outside help, meaning the parties should go to counselling or get some advice from an independent third party, but he had not agreed. On 15 April 2007 the husband gave the divorce. The husband rang the wife’s brother and confirmed this fact.

6 The wife gave evidence that after a couple is granted an Islamic divorce, they

must continue to live together in the same home for three months in order to confirm that no reconciliation is possible or likely and the wife is not pregnant. This period is referred to as the idda. The husband moved out of the family home on 23 June 2007. The Islamic divorce was “finalised” on that date.

7 The wife, in her affidavit, says that between April and June 2007 the husband

made arrangements to vacate the home. During this time the parties did things together such as eat meals together and go on outings with the children. They went on a holiday to [a country town] in June 2007 together with the children. She stated that she and her husband were not a couple during this period. They did not have sexual relations after 15 April 2007.

[2008] FCWA 65

8 The husband appeared via telephone from [overseas]. He cross-examined the

wife in relation to the circumstances of their separation. The wife agreed with him that everything relating to their married relationship stayed the same between 15 April and physical separation in June, except that they did not resume sexual relations after 15 April. They did, however, sleep in the same bed.

9 The wife confirmed that the parties were still known by friends to be husband

and wife. They went on a holiday to [the country] together. The husband’s affidavit
stated that friends and family hoped this was a sign of a reconciliation.

10 On 23 June 2007 the wife sent the husband the following text message:

“As one chapter ends, another begins, I ask for ur duas and patience. I ask u all to only speak when asked the slower this comes out the better for the children. it will give them time to adjust to there new routine. Jazakallahukhair for all ur support over the years. Wasalaam aayesha”

11 Section 48 of the Family Law Act 1975 states that an application for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably. Section 48(2) states that:

“Subject to sub-section (3) in proceedings instituted by such an application, the grounds shall only be held to have been established, and the divorce order 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 filing of the application for the divorce order.”

Section 49(2) states that:

“The parties to a marriage may have been held to have been separated and 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.”

12 The issue for determination by me in this matter is whether the parties “lived separately and apart” between 15 April and 23 June when they physically separated.

13 In Pavey and Pavey (1976) FLC 90-051 the Full Court considered what was meant by the term separation. They referred to, and agreed with, the comments made by Watson J in Todd and Todd (No. 2) (1976) FLC 90-008 where it was stated:

“In my view “separation” means more than physical separation - it involves the destruction 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,

[2008] FCWA 65

recognition of the existence of the marriage by both spouses in public and
private relationships.

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 Full Court went on to state:

“It is important to realise that sec 48 contemplates a very serious alteration in the marriage, which the Act calls a “separation”, and the continuance of that state, for a period of twelve months.”

14 Although the husband had given the wife the Islamic divorce on 15 April 2007, the parties did not separate on that date. In my opinion, the giving of the divorce was merely a stage of the process leading up to the parties’ actual separation. The wife confirmed that after 15 April the parties held themselves out to be husband and wife and were known to be so to friends and family. One of the purposes of the idda is to ensure there is no prospect of reconciliation. It appears from the text message sent by the wife that the children were not aware that there would be a change in their domestic situation. In all respects other than continuing their sexual relationship, the parties lived as they had lived previously.

15 When the parties were sure there was no prospect of a reconciliation, and that

the wife was not pregnant, the husband moved out in June. The wife’s text message of 23 June, in my view, confirms that this was, as far as she was concerned, the end of the marriage. At this stage she was anxious to ensure the children were protected from any adverse consequences flowing from their separation.

16 In my opinion, the date of separation was 23 June 2007. The wife’s application

was filed before the parties had been separated for a period of 12 months. The grounds for the divorce order have not been established and the application should be dismissed.

I certify that the preceding [16] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate