I am still Having Sex with my Wife – Am I Entitled to a Judicial Separation?

A client recently came to me very upset saying that he suspected that his wife was having an affair and she now wanted to separate from him. They have young children and he described to me in very emotional terms how if anybody came to his house, they would think they were the perfect couple. They get on well with each other and the children are all happy and completely oblivious to the problem their parents appear to have.

My client said that he wanted to contest his wife’s application for a judicial separation because he said they have been having a physical relationship on a regular basis and this had been ongoing up until about a month ago. He said that he believed that unless you had been living apart for over a year, you are not entitled to a judicial separation.

Unfortunately, he was not correct. You are entitled to obtain a judicial separation if you can prove that:-

• One party has committed adultery.
• One party has behaved in such a way that it would be unreasonable to expect the other spouse to continue to live with them.
• One party has deserted the other for at least a year at the time of the application.
• The parties have lived apart from one another for one year up to the time of the application and both parties agree to the decree being granted.
• The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted).
• The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree.

This final heading is the heading under which my client thought he would be able to contest his wife’s application for a judicial separation. It is certainly the most common ground upon which people apply for a judicial separation. However, I had to advise him that if the relationship between them has broken down and the court decides that it had broken down because he had behaved in such a way that it would be unreasonable to expect his wife to continue to live with him, then she may still be entitled to a divorce. This is a very grey area and if there are any difficulties at all in a relationship, it would be possible to make an argument that the wife in the example I have given above would be entitled to a divorce if she can show that her husband was acting in a selfish manner or an aggressive or unpleasant manner to the extent that it would be unreasonable to expect her to continue living with him. This is probably the argument that his wife is going to make.

The decision he has to make is whether he should contest the matter knowing that in doing so he is prolonging a relationship, which she is vehemently stating is over. If he finds out that his wife is having an affair, then all this will do is give him grounds for a judicial separation.

It’s a difficult decision. My advice to him was to sit down with his wife and if the relationship between them is as civil and amicable as he tells me it is, then there has to be a reasonable prospect that she will agree to go to counselling to see if whatever problems they have can be resolved.

That is sensible and reasonable but the problem is that if she is having an affair then commonsense and logic may fly out the window.

Kevin Brophy

Brophy Solicitors