One of the most important prerequisites to begin the proceedings to dissolve a marriage in Jamaica is proof that the husband and wife have been separated for at least 12 months immediately preceding the filing of the petition. As simple as this sounds, is as complex as the concept may become, because many persons do not understand what it really means to be 'separated'.

Separation does not mean that the couple needs to be living apart in a physical sense. They could still share the same roof, the same bedroom, or even the same bed and be separated. There is no need for either party to leave the house in which they are both living in order to satisfy this requirement.

Determining separation

When the word separation is used in the context of marriage, it means 'separation from the marriage'. There is no single way in which this can occur. In fact, a court will have to consider the manner in which the married couple had organised their affairs when they were a functioning unit to determine whether their actions now suggest that the marriage has broken down. How did the parties to the particular marriage behave when their lives were normal?

If we accept that a marriage is a partnership, which involves the sharing of the joys and sorrows, successes and disappointments of each party (the consortium viate), it may be one way to determine whether separation has occurred. However, there is no litmus test or checklist which may be used to answer the question.

Separation occurs when one or both parties form the intention to bring the marriage to an end and act upon it by withdrawing from the sharing of lives which characterised their marriage.

In one case in particular, in the marriage of Todd, the court found that "marriage involves many elements some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships". For this reason, separation means the breakdown of the marital relationship or what is called the consortium vitae.

It bears emphasising that the elements which define the marriage relationship will differ from one marriage to another. For this reason, a standard marker does not exist by which a court may be able to determine that a couple has separated. This is because some features which exist in one marriage may be absent from another, although both marriages function well.

When asked to consider whether the 12-month separation requirement has been met, it may be helpful to ask: "What changes did you notice in the relationship and when did they occur?"

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.