WIFE CONTEST HUSBAND’S APPLICATION FOR DIVORCE
Borra & Doshi [2020] FCCA 2259 (14 August 2020)
These proceedings concern the husband’s Application for Divorce. The wife contests that divorce, stating that separation had not occurred as put by the husband, but the marriage only came to its conclusion when she was served with the husband’s Application for Divorce on October 2019.
Facts:
The husband submits that he considers his marriage to the wife as having broken down irretrievably, with no reasonable likelihood of reconciliation and that the husband has lived separately to the Wife for a period of over 12 months, having left the former matrimonial home in or around December 2017 and living separately from the wife ever since.
Accordingly, it is only the ground of irretrievable breakdown of the marriage upon which the wife takes issue. She asserts that the marriage had not irretrievably broken down on the basis that the parties had not been “separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing” as required under section 48 of the Act.
In support of those two main contentions, the husband asserts that he did not live with the wife following December 2017, and “vehemently denies the Respondent’s allegations that he used to live with her for three days in a week, post separation”, a pattern that the Wife asserts continued until January 2018. The Husband specifically relies on the message sent by the Wife on 19 January 2018 that reads “What is my fault, we are married we should not be staying separate like this” and of 31 March 2019 that says “Tell me one thing, are you happy living apart since last one year? I have not been happy even a single day”.
Issue: Should the divorce order be made?
Law:
- Family Law Act 1975 Pt. VI, 39(3), 48(2), 55A(1)(a)
Analysis:
The court is satisfied that the husband moved out of the home in December 2017 or January 2018. That is corroborated by a third party, and is similarly corroborated by the Wife who deposed that the Husband removed the furniture from the home in January 2018. That the parties lived separately from then is similarly corroborated by the Wife’s own text messages, as she refers to the parties’ separation and living apart from that time. The separation was not a secret intention harboured by the Husband. He acted on that intention and moved out of the home.
There is no persuasive evidence before the court that the parties continued their marriage after that time, or ever resumed it. There was no evidence from the wife, for instance, that she had continued to undertake duties for the husband, or that they had continued to socialise together, entertain together or hold themselves out to the public as a couple.
Conclusion: The grounds for Application for Divorce order, namely that the marriage has broken down irretrievably, is proved. The court, therefore, orders that a divorce order be made.
