Should having sex, or even spending nights, with one’s spouse prevent a one-year’s continuous separation divorce?

South Carolina law allows spouses to obtain a divorce when they “have lived separate and apart without cohabitation for a period of one year.” S.C. Code Ann. § 20-3-10(5).  Based primarily upon what I hear anecdotally, I suspect if you asked South Carolina family court judges whether they could grant a divorce on this ground if the spouses continued to have sex–but didn’t live together–during that year, over half would say “no.”  Again anecdotally, if you asked these judges whether they could grant a divorce if the spouses continued to have sex and spent a few nights together, almost all would say “no.”  Based on public policy and relatively recent case law, I believe such answers are incorrect.

I base this view on two recent appellate decisions: Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007) and Semken v. Semken, 379 S.C. 71, 664 S.E.2d 493 (Ct.App.2008).   The family court’s mistake, as I perceive it, is that the judges are reading the word “cohabitation” out of S.C. Code Ann. § 20-3-10(5).  Cohabitation doesn’t mean having sex or even spending a few nights together. In Strickland, the Supreme Court looked to S.C. Code Ann. § 20-3-150 which defines “continued cohabitation” as when “the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days….” Id. 375 S.C. at 88.

Strickland further noted that the “resides with” language is what determines cohabitation and that residing means “live under the same roof.” Id. at 89. Semken emphasized this “live under the same roof” requirement as an essential component of cohabitation. Semken, 379 S.C. at 76.

Therefore, to go one year without cohabitation–which is all the divorce code requires–spouses only need to live under separate roofs.  Occasional hookups or even spending nights together does not appear to create cohabitation unless the spouses actually live under the same roof.  And, as many unmarried folks who’ve done the walk of shame well know, one can spend a night with a lover without living under the same roof.

Further granting a divorce when spouses might have attempted reconciliation during the year does not violate South Carolina pubic policy.  As Roy T. Stuckey’s Marital Litigation in South Carolina, 3rd Ed. notes in discussing this divorce ground:

Public policy favors trial reconciliations to save marriages. Some might argue that separated couples who try to reconcile are not positively sure that their marriage is dead until after an attempted reconciliation fails and, therefore, the year should begin running then. After all, that is why people must wait a year after separating before they can get a no fault divorce – to be certain the marriage cannot be saved.  This argument is not untenable, but it overlooks the fact that, if there is any lingering doubt, a trial reconciliation is the best way to test the viability of the marriage.  Insisting on an unbroken twelve month period of separation would work against the public policy in favor of reconciliation and, perhaps, against the public policy supporting the permanence of marriage. Parties who have been separated for a period of time might hesitate to attempt a reconciliation out of fear of losing their ground for divorce, even if they think it might be possible to save their marriage. It would be less risky for most couples who are contemplating reconciliation to wait until they become divorced, then give their relationship another shot without getting married again. Thus, a rigid rule that an attempted reconciliation requires the clock to start over for no fault divorces would not only discourage attempted reconciliations, it would encourage people who are considering reconciliations to live together out of wedlock.

No case law holds that sex or overnights stays during the one-year separation period prevents the granting of divorce.  South Carolina public policy encourages reconciliation attempts prior to granting a divorce; in fact S.C. Code Ann. § 20-3-90 requires the family court to inquire whether the parties can be reconciled before granting the divorce.  By reading the “without cohabitation” requirement of § 20-3-10(5) as meaning “without sex” or “without spending nights together,” instead of “without living under the same roof,” South Carolina family court judges have made it harder to obtain a no-fault divorce than the law actually requires.

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