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Dupere v Dupere (1974), 19 RFL 270

Facts:

Couple was separated and had a separation agreement, but then moved in together. But they slept in different rooms. They moved twice but stayed physically together. Sex stopped. H was giving $ to W, and supporting household. H did not have plans for what would happen in the future, they planned to continue to live together.

Issue(s):

Were the parties living separate and apart as required under the Divorce Act?

Ratio:

To be considered living separate and apart need: Physical sep and withdrawal by 1 or more spouse of the matrimonial obligation w/ intent to destroy matrimonial consortium

Analysis:

Test for living separate and apart: each case determined on own circumstance, there can be physical separation while living in the same home. Sex is not conclusive about separation.

Conditions to consider (not conclusive): (Cooper)
*Separate bedrooms
*Little communication between spouses
*Wife doesn’t provide domestic services for husband
*Eating meals together or apart
*No social activities together
*Absence of sexual relations

Holding:

Court did not grant divorce because couple was considered not to be living separate and apart


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