Adultery and intolerability do not have to be linked.

The wife had left the husband and moved in with Mr Penfold. She called herself Mrs Penfold and they lived together as if they were married, although she remained married to the husband. When the husband became unwell he moved in with the wife and Mr Penfold as their lodger, paying them for his bedroom. He ate some meals with the family and the wife did all the washing. The court considered they were living apart. The wife lived with Mr Penfold as his wife. The husband was a lodger in the house.

Living together means living together as husband and wife.

The husband and wife had a violent argument. Although they continued to live together they did not speak or eat together again. Divorce granted.

A couple may live in the same premises as long as all common life has ceased.

The couple married when he was 56 and she was 24. The husband patronised the wife and continually criticised her. He became very angry after she gave sherry to a photographer who visited the house when he was not present. She left him after a violent argument and was successful in her petition for divorce under s 1(2)(b).

The test for behaviour is ‘would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and personalities’.

In this case the wife left the shared bedroom to share with their daughter and the husband shared with their son. The parties ate together, not always in the company of the children, and the wife cooked the meals. The parties shared the cleaning and cleaned the entire house. The wife did not do the husband’s washing and he only remained at the matrimonial home to live with and help look after the children. They were regarded as living together in the same household.

All common life between a couple must cease before they can be said to be living apart.

The wife sought a divorce on the basis of the husband’s behaviour. The divorce petition was drafted in a mild way. The judge at first instance found that the marriage had broken down, but that the examples of behaviour used by the wife did not meet the test under s 1(2)(b).

The Supreme Court dismissed the appeal. It noted how rare these sorts of cases were in practice, and suggested that Parliament may wish to consider reform of the law.

The husband lived in Spain and the wife in England. The wife had visited the husband for short periods and shared a bed. Petition for divorce under s 1(2)(d) dismissed.

Living apart involves a mental element as well as a physical element.