Opinion
No. 7222DC22
Filed 29 March 1972
1. Divorce and Alimony 13 — separation for one year — absence of mutual consent or court decree In order to be entitled to a divorce a plaintiff need not show that a marital separation for the statutory period was by mutual agreement or under a decree of court.
2. Divorce and Alimony 13 — living separate and apart A husband and wife are deemed to live separate and apart within the meaning of the divorce statute when: (1) they live separate and apart physically for an uninterrupted period of time at least as long as the time required by the divorce statute; and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation.
APPEAL from Dearman, District Judge, 18 June 1971 Session of District Court held in DAVIDSON County.
George W. Saintsing for plaintiff appellee.
William H. Steed for defendant appellant.
This action for absolute divorce was instituted on 15 July 1970.
Plaintiff alleged, and offered evidence at the trial which tended to show, that she has been a resident of North Carolina for 59 years, that she and defendant were married on 20 December 1923, and that they separated on 17 October 1965 and have lived separate and apart since that time. Defendant filed answer in which he did not deny the separation but alleged that it came about because plaintiff left the home without just cause or excuse. Plaintiff testified she left because "[m]y husband told me numerous times if I did not like the way he done, out there was the road." Defendant testified in substance that he never mistreated his wife and never agreed that she could leave.
Issues were answered in plaintiff's favor and a judgment of divorce was entered.
[1, 2] Defendant contends that in order to be entitled to a divorce a plaintiff must show that a marital separation for the statutory period was by mutual agreement or under a decree of court. This was true prior to 1937. In that year the divorce statute was amended so as to remove this requirement. Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902. During the past 35 years a husband and wife have been deemed to live separate and apart within the meaning of the divorce statute when: (1) they live separate and apart physically for an uninterrupted period of time at least as long as the time required by the divorce statute; and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation. See Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525; Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 and cases cited.
Affirmed.
Judges CAMPBELL and BRITT concur.