What constitutes the end of a marriage?

In a couple of previous posts I have mentioned cases where the Court was required to examine the minutia of the parties lives to determine whether they were in a de facto relationship. You would ordinarily think that with marriage it would be easier to tell. However, the Court is actually frequently required to delve into the details of a marriage to determine when it ended - either for the purpose of an Application for Divorce or in order to determine the contributions that were made during the marriage in relation to a property division application.

Yesterday just such a case caught my eye when it was headlined on http://www.smh.com.au/act-news/i-wouldnt-have-married-her-if-id-known-she-had-deformed-nipples-exhusband-20150412-1milj4.html as "'I wouldn't have married her if I'd known she had deformed nipples': ex-husband".  Attention grabbing isn't it?

The case, published as Drysdale & Drysdale [2014], is a decision by Judge Neville in the ACT relating to a dispute between husband and wife as to the length of the marriage and the contributions of each of them during that time and post-separation.

His Honour stated that the husband was intent on having the Court determine the actual date of separation - "in his view it was essential that this occur because, he said ... (a) separation was in 1999, and (b) once this was established, in some way (he contended) this had the effect of quarantining his assets from the Wife's pursuit of them after that date. Respectfully the Husband was and is inaccurate in this regard in at least two respects. First, for the purposes of property proceedings, the date of separation does not, of itself, determine whether the assets of one party are or are not included in the asset pool ..."

The husband claimed that the relationship ended in 1999 but the wife stated that it ended in 2011.The husband, in his affidavit and in his oral evidence, set out his view that he intended to leave the marriage in 1974 when he had become aware of what he called a disfigurement of the wife (the Judge commented in the judgement that the description by the husband was "tersely lurid and doubtless hurtful"). The husband claimed that he nonetheless stayed with the wife for the children.

His Honour noted "whatever the Husband subjectively thought or intended regarding the date of the end of the relationship, it is for the Court to make determinations objectively in the light of the evidence presented to the Court.

Judge Neville determined the date of separation as 2011.

In doing so the Judge observed the following:

• The couple were married in 1972. The first child of the marriage was born in 1974 and two further children followed.  
• Attached to the wife's affidavit were date-identified photographs of the parties, post 1999, which suggested that the parties presented publicly - and did so over a period of time - as a couple. There was also affidavit material from friends stating that the parties appeared publicly as a couple. 
• The parties attended various family events, went to dinner with friends and alone together, and continued to go on holidays between 1999 and 2011. The husband claimed that he attended these events as a friend, or father to his children. 
• The husband completed the wife's tax return until 2002.
• In 2004 AAT proceedings the husband identified the parties as husband and wife.
• The parties utilised a shared credit card until 2007.
• The parties attended marriage counselling together during this period. 
• The husband confirmed that they slept in the same bed together - at least until 2006.
• No family members were told of the separation until 2011. Indeed the husband gave evidence that he was annoyed with the wife for having told his mother of the separation in 2011.