P & P - [2005] FMCAfam 137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & P

[2005] FMCAfam 137

FAMILY LAW – Contested proceedings for dissolution of marriage – consortium vitae – whether casual acts of sexual intercourse preceding separation constituted resumption of cohabitation – case where husband refuses to accept the wife’s intention that the marriage is at an end – husband’s evidence and submissions contradictory – no intention of the wife preceding the date of separation to restore the matrimonial relationship – Decree Nisi granted.

Family Law Act 1975 (Cth), ss.48, 48(1), 48(2), 49, 49(1), 49(2)

Todd v Todd(No 2) (1976) FLC 90-008; (1976) 1 Fam LR 11,186
Pavey v Pavey (1976) FLC 90-051; (1976) 1 Fam LR 11,358
Falk v Falk (1977) FLC 90-247; 76,333 (1977) 3 Fam LR 11,238
Batty v Batty (1986) FLC 91-703
Tulk v Tulk [1907] VLR 64
Macrae v Macrae (1967) 9 FLR 441
Clarke v Clarke (1986) FLC 91-778
Bell and Bell (1979) FLC 90-662
Mummery v Mummery (1942) P 107

Applicant:

Respondent:

File Number:

PAM 5100 of 2004

Judgment of:

Pascoe CFM

Hearing date:

6 April 2005

Delivered at:

Parramatta

Delivered on:

6 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr Heazlewood

Solicitors for the Applicant:

Lolita Farmer & Associates

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Nil

ORDERS

I find that the applicant wife is domiciled in Australia.
I formally find, relying upon the Certificate of Marriage, the parties were married on 4 April 1999 at K C.
I find that the parties separated on 13 September 2003.
I find that the marriage has irretrievably broken down.
I pronounce a Decree Nisi for the dissolution of the marriage to become absolute within one month and one day from today’s date.
I declare I am satisfied that there are no children of the marriage.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 5100 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for Dissolution of Marriage filed by the wife on 11 October 2004. In support of her application the wife relies upon her affidavit filed 9 December 2004. The husband filed his response on

24 November 2004 and an affidavit in support of that response on 19 January 2005.

Short background

The parties were married on 4 April 1999 at KC.
The wife was born in 1973 in P and migrated to Australia on 18 May 1998.
The wife is employed as a supervisor.
The husband was born in 1957 and is employed by a firm of Accountants. The husband is a qualified lawyer who has previously practiced as a solicitor but now practices as an Accountant.
It is common ground that the parties met in Australia.
There are no children of the marriage.

The relevant law

Before the Court can grant a decree for the dissolution of a marriage the Court must be satisfied that the marriage has irretrievable broken down. This requirement is reflected upon under s.48(1) of the Family Law Act 1975 (Cth) (“the Act”). Section 48(1) 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 than 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 is defined in s.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.
More particularly, in Todd v Todd(No 2) (1976) FLC 90-008; (1976) 1 Fam LR 11,186, Watson J said at [75,079] that:
To prove that a marriage has irretrievably broken down the following elements are required:
(a)separation of the spouses; and
(b)thereafter a continuous living separately and apart for at least 12 months immediately preceding the application for dissolution.
The definition in that cases was subsequently varied by the Full Court of the Family Court of Australia in Pavey v Pavey (1976) FLC 90-051; (1976) 1 Fam LR 11,358. In particular the Full Court 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 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.”
Implicit from this passage is that there are two elements which need to be established for separation – intention and action. However, in addition to those two elements it is sometimes said that there is a further element and that is a requirement of communication. This arose out of the Full Court’s decision in Falk v Falk (1977) FLC 90-247 at [76,333]:
“It can be concluded that a change in the attitude of one party (or of both parties) towards the marriage is an important element in establishing a change in the marital relationship. Particularly where they continue to reside in the same residence a withdrawal from ‘recognition of the existence of the marriage’ and ‘an intention to sever (or not to resume) the relationship’ would usually be essential ingredients in establishing separation. Where the marriage has deteriorated over a period these aspects may be the final stage in separation; they would be manifest in the attitude of one or both of the parties.
The attitudes and intentions of the parties may be spoken or unspoken; where both parties withdraw from recognition of the marriage the surrounding circumstances would often make it easier to establish separation. Where one party only has formed the relevant attitude and intention they 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.
The 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.
Separation under the one roof usually requires some corroborative evidence.
In each case, the question of whether a separation has occurred, is a question of fact.
Living separately and apart for the purposes of s.48(2) involves more than just physical separation. It involves the breakdown of the marital relationship, what is usually known as the consortium vitae. In Batty v Batty (1986) FLC 91-703 Wilczek J at [75,087] provided a comprehensive list of the various elements that comprised a consortium vitae (See also Tulk v Tulk [1907] VLR 64).
The presence of some of these elements is not inconsistent with a breakdown of the consortium vitae. 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.
Once the consortium vitae 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 (Macrae v Macrae (1967) 9 FLR 441; Clarke v Clarke (1986) FLC 91-778).
I accept that the husband and wife met for dinner on a few occasions and that sexual intercourse may have taken place on at least one and possibly several occasions.
The husband gave evidence that he took away the wife’s key for security reasons and did not return the keys despite the wife’s request that he do so. This of itself is indicative of the change in the nature of the relationship between the husband and wife.
In the present case it is not disputed that the wife left the matrimonial home on 13 September 2003 which was jointly owned and did not return to live there. I accept the wife’s evidence that she had told the husband she intended to leave the marriage and that she did not intend to restore the relationship. The wife’s visits to the matrimonial home have been occasional, not overnight and seem to have been primarily for the purpose of collecting personal items or communicating with the husband on matters of finance.
At issue in the present case is whether the casual acts of sexual intercourse following the date of separation could be said to constitute a resumption of cohabitation. It is agreed between the parties that there was sexual intercourse following separation. However, the dispute is as to the precise number of occasions. On the wife’s evidence there was one act of intercourse post separation at the matrimonial home following dinner with the husband. The wife gave evidence that she unwillingly submitted to intercourse to avoid further discussion. The husband deposes that there have been more than one occasion where the parties have engaged in intercourse after separation and that they occurred at the matrimonial home and in the husband’s car near P. Even if I accept the husband’s evidence that there were more occasions than deposed by the wife, however, these acts were casual and on the evidence before me I am not satisfied that these casual acts of intercourse would constitute a resumption of cohabitation. On the authorities, resumption of cohabitation involves, in the words of Lord Merriman P in Mummery v Mummery (1942)

P 107 at [110]:
“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.”
Any such intention, at least on the part of the wife is absent in the present case.
The authority is clear as Baker J said in Bell and Bell (1979) FLC 90-662 at [78,534] that:
“`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 ... of itself have the effect of a resumption of cohabitation …”
Accordingly, as a result of the evidence, I am satisfied of the following and make the following findings:
a)that the parties separated on 13 September 2003 when the wife left the matrimonial home;
b)the there was a communication on the wife’s part to separate;
c)thereafter the parties did not live together;
d)I find that notwithstanding the husband's evidence the wife does not wish to reconcile with him and has not indicated a wish to reconcile with him since the date of separation. Driven by his strong religious convictions, I am satisfied that the husband consistently refuses to accept the marriage is at an end. His refusal to do so, in my view, is exemplified by his repeated emails to the wife;
e)that cohabitation was not resumed after separation;
f)the parties separated for a period of 12 months prior to the filing of the application for divorce;
g)the marriage has irretrievably broken down and there is no likelihood of a reconciliation; and
h)the casual acts of sexual intercourse that occurred between the parties following the date of separation do not constitute a resumption of cohabitation.
Accordingly, it follows that I find that there is clearly no merit to the husband's opposition to the wife’s application for divorce. I am therefore satisfied a Decree Nisi should be granted.
For all these reasons the orders of the Court will be as set out at the commencement of these Reasons for Judgment.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Associate: Peter Smith

Date: 6 April 2005