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Separated but had been Intimate More than Once

Discussion in 'Family Law Forum' started by JasmineM, 30 September 2014.

  1. JasmineM

    JasmineM Member

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    I moved out of home in about July, however in that period I did what I consider "re-date" my ex-husband. We probably have shared meals on over 100 occasions and have had sex over a dozen times - however recently I have decided that I do not want to return to the relationship. I am just wondering, since I never moved back in with him - can I file for divorce considering it has been 12 months since July?

    My ex wanted to rekindle the relationship, however I do not. Am I right that even though we spent a lot of time together, including intimate time - I can legally divorce him because I never moved back in during those 12 months? Any help would be greatly appreciated.

    FYI we last had sex about 2 months ago - and for a period of around 3-4 months we saw each other nearly every day and shared meals most days. I did spend a lot of nights with him, not always having sex.
     
  2. JasmineM

    JasmineM Member

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    Sorry I also must add I moved out in July 2013 - not July 2014!! Last had sex in July this year (2014).
     
  3. Sophea

    Sophea Well-Known Member

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    Dear JasmineM,

    As you are likely aware the sole ground on which a divorce will be granted is "irretrievable breakdown". This is considered by a court to have occurred when the parties to the marriage live apart for at least 12 months and have no reasonable chances of reconciling.

    The 12 month period of separation begins running on the day after at least 1 of you considers the relationship to be over and informs the other partner. You may however resume your relationship after the commencement of the separation period and continue to live as though you are married for up to 3 months without having to start the separation period running again. The separation period would resume when you separate again.

    There is a 1977 case of Feltus which is states that isolated acts of intimacy do not discontinue the separation period, however from what you have stated above, your encounters seem to be more than isolated acts.

    Therefore if your period of resumption of the relationship is less than 3 months you can simply subtract that 3 months from the 12 month period. Otherwise you will likely have to start the 12 months again.
     

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