The history of 'living separately and apart' in ecclesiastical and matrimonial law
43 The context in which the "well hallowed" phrase "living separately and apart" arose in the ecclesiastical law is as follows.
44 During the 17th century, a divorce in ecclesiastical law which dissolved the bonds of marriage, a vinculo matrimonii, could only be obtained in very limited circumstances. The alternative of divorce a mensâ et thoro ("from the table and the bed") did not truly dissolve the marriage: Burn R, Ecclesiastical Law (4th ed, Strahan and Woodfall, 1781) p 445. This divorce "from the table and the bed" was later relabelled a "judicial separation" by s 7 of the Divorce and Matrimonial Causes Act 1857 (UK) 20 & 21 Vict., c. 85 (subsequently the Matrimonial Causes Act 1857 (UK)) when Parliament legislated to terminate that ecclesiastical jurisdiction: Clibbery v Allan [2002] EWCA Civ 45; [2002] Fam 261, 274 [29] (Dame Elizabeth Butler-Sloss P).
45 The chaos of the Interregnum in the mid-17th century saw the abolition of the ecclesiastical courts without anything being put in their place: Stone L, Road to Divorce: England 1530-1987, (Oxford University Press, 1992) 149. Amidst this chaos, private separation agreements were created between a husband and a trustee for his wife (since a wife had no separate legal personality) as a means of giving some legal efficacy to the end, in practical terms, of the marriage. The agreements flourished, particularly because of their privacy for both parties and the (still limited) personal and financial independence that they afforded the wife. Over a lengthy period of time, parties challenged various standard clauses in these agreements, particularly those giving financial independence to the wife. Different approaches were taken by the ecclesiastical, common law, and equity courts to the validity of different clauses, although the wife's financial independence was, characteristically, the focus of Lord Mansfield as Lord Chief Justice and the focus of the later opposition of Lord Eldon as Lord Chancellor: Corbett v Poelnitz (1785) 1 TR 5; 99 ER 940; Ringsted v Lanesborough (1783) 3 Doug 197; 99 ER 610; Marshall v Rutton (1800) 8 TR 545; 101 ER 1538. The efforts of Lord Eldon and others to end resort to private separation agreements failed; such agreements were in widespread use when the 1857 Act was enacted and remained in use for some time afterwards.
46 The common form of these separation agreements usually included a clause recording that the parties had agreed "to live separately and apart from each other" for the future: Sullivan v Sullivan (1824) 2 Addams 299, 300; (1824) 162 ER 303, 304; Warrender v Warrender (1835) II Clark & Finnelly 488, 491; (1835) 6 ER 1239, 1240; Hunt v Hunt (1862) 4 De G F & J 219, 221; (1862) 45 ER 1168, 1169.
47 The context in which the clause recorded the parties' agreement to live "separately and apart" for the future was therefore the breakdown, in practice, of one household and the creation of circumstances where the husband and wife would live separate lives. The common use of the phrase "to live separately and apart from each other" for the future is unlikely to have been invented entirely afresh in the mid-17th century separation agreements. It may have been borrowed from the long established Roman principle for dissolution of marriage: Divortium non est nisi verum, quod animo perpetuam constituendi dissensionem fit (D 24.2.3 (Paul)). Loosely, this translates as "A true divorce does not take place unless there is an intention to live apart permanently". Importantly, the Roman principle of "living apart" or "remaining apart" was not concerned with physical living arrangements. It was concerned with whether the spouse remained a part of the Roman household. So a marriage would not be dissolved if a spouse fell into "enemy hands", even indefinitely, so long as it was known that the spouse remained alive: D 24.2.6 (Julian). See also Frier B and McGinn T, A Casebook on Roman Family Law (Oxford University Press, 2004) 156-157, 163 and Jolowicz, HF Roman Foundations of Modern Law (Clarendon Press, Oxford, 1957) 152-153. Although we do no more than point to the possible relationship between Roman law and the use of "separate and apart" clauses in separation agreements, we also note that contemporary ecclesiastical lawyers were skilled in law based on Roman texts (as shown in the discussion of marriage in Burn's Ecclesiastical Law: see [44] above); and that late 16th and early 17th century English common lawyers showed greater familiarity with Roman texts than their predecessors, prompted perhaps by a lack of useful texts on English law: Ibbetson D and Lewis A, "The Roman law tradition" and Lewis A, "What Marcellus says is against you': Roman law and Common law" in Lewis ADE and Ibbetson DJ (eds), The Roman Law Tradition (Cambridge University Press, 1994) ch 1, 9-10 and ch 12, 199, 206-207.
48 The concept of a separation based on agreement was given legislative force in 1928 when New Zealand passed legislation which created a right to divorce, one ground of which was based upon a separation agreement. The New Zealand Divorce and Matrimonial Causes Act 1928, s 10(i) provided that a ground upon which to seek divorce was that "the petitioner and the respondent are parties to an agreement for separation, whether made by deed or other writing or verbally, and that such agreement is in full force and has been in been in full force for not less than three years".
49 The New Zealand model was developed and adapted in Australia by a number of States. One of them was South Australia in the Matrimonial Causes Amendment Act 1938 (SA), amending the Matrimonial Causes Act 1929-1936 (SA). Another was Western Australia, with the enactment of the Supreme Court Act Amendment Act 1945 (WA), inserting a new s 69(6) into the Supreme Court Act 1935 (WA). That sub-section was also modelled on the terms of a separation agreement. It provided for a ground for dissolution of marriage where "the husband and wife have lived separately and apart for a period of not less than five years immediately prior to the presentation of the petition and it is unlikely that cohabitation will be resumed". In moving the second reading for the enactment of this provision, the Member for West Perth not only referred to the South Australian legislation but also spoke of the manner in which the Western Australian legislation had developed the New Zealand model: Western Australia, Legislative Assembly, Debates (3 October 1945) Vol 116, p 996.
50 In Main v Main (1949) 78 CLR 636, the High Court of Australia considered the meaning of s 69(6) of the Supreme Court Act 1935-1947 and the requirement of "living separately and apart". The issue in that case was whether the conditions in the section had been satisfied. Mrs Main's husband had been paralysed and had lived in separate care accommodation for more than five years. The High Court held that the requirements of the section had been satisfied. In a joint judgment, Latham CJ, Rich, and Dixon JJ said that the provision was a 'notable extension of the previous law' and that (at 641-642):
The two words "separately and apart" show that physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship while the spouses dwell under the same roof. In matrimonial law the expressions like "live separately", "separated", and "separation" are commonly used to indicate that the conjugal relation no longer exists between the parties to the marriage. Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences from one another, even for very long periods of time. It rests rather on a real and mutual recognition by the husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.
51 The provision in the Western Australia legislation was subsequently duplicated in s 28(m) of the Matrimonial Causes Act 1959 (Cth). That section was considered in Crabtree v Crabtree (1963) 5 FLR 307. In that case, the Full Court of the Supreme Court of New South Wales considered whether a husband and wife who lived in the same house could nevertheless live "separately and apart" within s 28(m) of the Matrimonial Causes Act. The Full Court held that they could. Sugerman and Dovey JJ (at 311) explained that the High Court in Main had not been concerned with a circumstance where two spouses lived "separately and apart" under the same roof, and that their Honours had not denied that this was possible. Sugerman and Dovey JJ (309) approved the formulation of Bucknill LJ in Hopes v Hopes [1949] P 227, 234, saying that the test was whether "although husband and wife are living in the same dwelling, … there is such a forsaking and abandonment by one spouse of the other that the court can say that the spouses were living lives separate and apart from one another" (emphasis added). This same passage had also been quoted with approval by Street CJ (Owen J agreeing) in Campbell v Campbell (1951) 51 SR (NSW) 158, 160.
52 In Crabtree, Sugerman and Dovey JJ recognised that their conclusion was incongruous with the ordinary meaning of the words "separately and apart". But their Honours held that Parliament intended the words to bear the meaning that had become familiar in matrimonial law, and so a husband and wife could live "separately and apart" in the same house (at 310). That established meaning was supported by the decision of the English Court of Appeal considering this phrase: Hopes v Hopes [1949] p 227. It was supported by authority considering the phrase "separately or apart": Ayling v Ayling (1949) 51 WALR 61; cf Flindell v Flindell (1948) 50 WALR 9. And the conclusion was also supported by authority concerning circumstances of "wilful desertion" for 3 years or more under s 75(a) of the Marriage Act 1928 (Vic): Power v Power [1944] ALR 427; Watkins v Watkins (1952) 86 CLR 161; Potter v Potter (1954) 90 CLR 391.
53 The conclusion that parties could live "separately and apart" even if residing in the same house was given express statutory force in the Family Law Act 1975 (Cth) s 49(2): "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". See In the Marriage of Pavey (1976) 25 FLR 450, 456 - 458 (the Court).
54 Several conclusions can therefore be drawn from this long history of the phrase "live separately and apart" at the time that this phrase was first introduced into the Migration Regulations 1989.
55 First, the phrase denoted both a physical and a mental element. Although there was dispute about whether the phrase was a composite one embodying both elements (Santos v Santos [1972] Fam 247, 258) or whether "separate" embodied a mental element and "apart" embodied a physical element (Crabtree v Crabtree (1963) 5 FLR 307, 319 - 320 (Nagle J), ultimately, that dispute was only a semantic one: Crabtree v Crabtree (1963) 5 FLR 307, 312 (Sugerman and Dovey JJ).
56 Secondly, the mental element was independent of whether the parties lived in the same house. The mental element involved the intention of the parties to live separate lives following the destruction of the marital relationship (consortium vitae).
57 Thirdly, although the physical element required some physical separation of the parties, the ultimate question was not whether the parties were physically living together in the same house. Even living in the same house could involve the parties being "separate and apart". The focus on the physical element was upon whether their physical behaviour involved "living lives separate and apart from one another". That could occur in the same house. Conversely, it might have been possible for a husband and wife who maintained separate residences to fail to meet the physical element if, as a whole, their lives were lived as a single household.
58 Fourthly, the reference to 'cohabitation' in s 69(6) of the Supreme Court Act 1935-1947 (WA) and also in s 28(m) of the Matrimonial Causes Act was not treated as having altered this physical element to require 'habitation' in separate houses rather than as separate households. Those provisions, as considered by the High Court in Main v Main, and the Full Court of the Supreme Court of New South Wales in Crabtree v Crabtree provided:
… where the husband and wife have lived separately and apart for a period of not less than five years immediately prior to the presentation of the petition and it is unlikely that cohabitation will be resumed. (Emphasis added).
Much the same requirement was included in s 48(3) of the Family Law Act 1975, which provided that there could be no dissolution of marriage if the court were satisfied that there was "a reasonable likelihood of cohabitation being resumed".
59 The conclusions relevant to s 5CB(2)(c)(ii) of the Migration Act that can be drawn from the history of the phrase "live separate and apart" are therefore that:
(1) both the physical and mental elements of the phrase were concerned with a husband and wife who were living their lives separate and apart from each other as separate households;
(2) the phrase therefore did not require that the parties live in different homes but rather focuses upon whether they lived their lives separately as separate households;
(3) conversely the phrase "not living separately and apart on a permanent basis" focuses upon whether the parties will not live as separate households on a permanent basis;
(4) even when legislation was enacted which included the requirement that it be "unlikely that cohabitation will be resumed", the Full Court of the Supreme Court of New South Wales had held that living in a separate house was not required; and
(5) later legislation in 1975 that included the satisfaction requirement of no reasonable likelihood that cohabitation will be resumed also included an express provision that 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".
60 Against this history of the meaning of the phrase "not live separately and apart on a permanent basis" it would have been a radical change in meaning if the introduction of this phrase in the definition of "spouse" in the Migration Regulations 1989 and its eventual repetition in the Migration Act s 5CB(2)(c)(ii), without even a reference to resumption of "cohabitation", were to bear a meaning that the two persons must physically reside in the same premises for at least a temporary period in the past.