Section 49 of the Family Law Act provides:
- The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
- The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
In Pavey (1976) 1 Fam LR 11,358, the full-court quoting (with amendments in square brackets) the decision of Murphy J in Todd (No 2) (1976) 1 Fam LR 11,186, said:
“‘separation’ means more than physical separation — it involves the [breakdown] of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. 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 [and the nurture and support of the children of the marriage].”