## Facts

- Mrs. McA and Mr. McA married in October 1968 and had two children.
- In 1988, Mr. McA had an affair and left the marital home.
- In 1991, Mr. McA moved back into the marital residence to try to improve his relationship with the couple’s youngest son, who was then 18.
- Mrs. McA wanted reconciliation, but Mr. McA did not.
- After his return, Mr. McA lived in separate accommodation (an apartment) within the house and never shared a bedroom with Mrs. McA.
- Mr. McA took part in family life mainly when the children were present; when they were not, he largely kept to himself or travelled.
- Both spouses had extramarital relationships during the period when they were living in the same house.
- Mrs. McA issued proceedings seeking a decree of judicial separation and ancillary relief, including property and support orders.
- Mr. McA accepted that Mrs. McA was entitled to judicial separation but brought a counterclaim seeking a decree of divorce.
- It was not disputed that the marriage had irretrievably broken down; the dispute concerned whether the statutory “living apart” requirement for divorce was met where the parties continued to reside under the same roof.

## Issues

1. Whether spouses who live in the same dwelling, but in separate quarters without marital relations, can be found to be “living apart from one another” for the required period under s. 5(1) of the Family Law (Divorce) Act 1996.
2. What factors the court should assess in deciding whether parties are “living apart,” including the role of the parties’ intention and the reality of their day-to-day married life.
3. If a decree of divorce is granted, what financial orders are required to make proper provision for the spouses.

## Decision

- The High Court addressed the divorce counterclaim first, since a decree of divorce would make a judicial separation order unnecessary.
- The court held that “living apart” is not determined only by whether spouses share an address or live under one roof.
- In deciding whether spouses are “living apart,” the court must consider both the practical living arrangements and the parties’ mental and intellectual attitude to living together as husband and wife.
- On the facts—separate accommodation within the home, no shared bedroom or marital relationship, limited shared life, and the accepted breakdown of the marriage—the court found the parties had in effect lived apart for the required period (four years during the previous five years).
- The court granted a decree of divorce.
- The court then made ancillary financial orders, including maintenance and a lump sum, directed to proper provision under the 1996 Act.

## Legal Principles

- The phrase “living apart from one another” in s. 5(1) of the Family Law (Divorce) Act 1996 can be satisfied even where both spouses remain in the same house.
- “Living apart” is a question of fact and degree: it requires assessment of whether the spouses, in substance, are living together as a married couple, not simply whether they share a roof.
- The court may consider objective indicators (separate bedrooms or quarters, separate domestic routines, absence of marital relations, limited shared social and family life) alongside the parties’ settled state of mind about the marriage.
- English authorities on “living apart” may assist, but the Irish court must apply the statutory and constitutional divorce conditions, including the time requirement, to the facts proved.
- Where the conditions for divorce are met, the court must make financial orders that amount to proper provision, having regard to the parties’ means, needs, and the circumstances of the family.

## Conclusion

McA v. McA held that spouses may meet the statutory “living apart” condition for divorce even while continuing to reside in the same home, where the evidence shows the marital relationship has ended in practical terms and in the parties’ state of mind; applying that approach, the High Court granted a decree of divorce and made financial orders to provide for the parties.


McA v. McA, 1 I.R. 457 (2000)