Key definition

Separation requires the parties to live in separate households. Normally this will be in separate houses, but it is possible for them to live separate lives under the same roof. The court will consider whether or not they were sharing communal living (e.g. were they eating together; engaging in household tasks together). As well as living separately at least one of the parties must have reached the conclusion that the marriage is at an end {Santos v. Santos (1972)).

Reading: As far as separation is concerned, a husband and wife are treated as living apart unless they are living with each other in the same household. However, it is possible for there to be factual separation where the parties are living under the same roof. What matters is that they are not living in the same household.

Thus, for example, in Fuller v. Fuller [1973] a decree was granted where the husband lived as a lodger with his wife and her new male friend. In Mounter v. Mouncer [1972], on the other hand, a decree was refused because, although they slept in separate bedrooms, the spouses were not living in separate households. They ate their meals with the children and they shared household chores.

Fact 5. Five-year separation

Matrimonial Causes Act 1973, section 1(2)(e) (...) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

Reading: In the very recent case of Charman v. Charman, [2005] - which the London newspapers referred to as involving “the insurance multi-millionaire John Charman, one of the richest men in the City” - the English Court of Appeal directed that evidence could be procured overseas concerning an offshore trust that had been created during the marriage from the husband’s insurance business.

The couple, who have two children, were married in 1976 when neither had significant resources. Mr Charman went on to have a successful career and build up considerable wealth in the insurance market in the City of London. Mr Charman had set up the Dragon Trust in Bermuda in 1987 which had assets worth Ј68m. He set up Axis, a global insurance and reinsurance company based in Bermuda. But in early 2003, he moved permanently to Bermuda and separated from his wife who remained in England.

She issued a petition for divorce in June 2004, which included an application for financial settlement, known as ancillary relief.

There was a Ј67 million difference between the husband’s statement of assets and the wife’s. The discrepancy represented the assets of the trust, which, the wife claimed, would be made available to the husband if he so requested and should therefore be included as part of the ancillary relief claim.

Mr Charman wanted the Dragon Trust assets left out of account because they were for the long-term benefit of members of his family and he did not have control of those assets.

The court adopted a broad interpretation of the nature of the “resources” that a divorce court must take into account in determining the financial aspects of a divorce. In other cases the courts had held that the test was whether or not the spouse had “real or effective control” over the trust. However, the Charman court held that that test was too restrictive, since trustees may have the control but may allow the settler or other beneficiaries to have access to the income or capital of the trust. Accordingly, Lord Justice Wilson stated that the test should be whether it is likely that a party has access to trust assets.