Bennington v. Bennington
381 N.E.2d 1355, 10 Ohio Op. 3d 201, 56 Ohio App. 2d 201 (1978)
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Rule of Law:
For a married couple to be considered 'living separate and apart' under a no-fault divorce statute, there must be a complete cessation of marital duties and relations, not merely physical separation into different dwellings on the same property.
Facts:
- Mary Bennington and Larry Bennington were married in 1946.
- In 1963, Mary suffered a stroke that left her permanently and totally disabled, and the parties ceased having sexual relations.
- In 1974, Larry moved out of the marital home and into a travel van located on the same property, citing irritation with the high temperature of the house and his wife's habit of locking the doors.
- After moving into the van, Larry continued to enter the house regularly and assist his disabled wife with household chores, maintaining his marital responsibilities.
- Larry stated that he had no intention of abandoning his marital responsibilities when he moved to the van in 1974.
- On November 26, 1976, Larry became disenchanted with the arrangement, left the property entirely, and eventually obtained a separate apartment.
Procedural Posture:
- Mary Bennington (wife) commenced an action for alimony only against Larry Bennington (husband) in the trial court.
- Larry Bennington answered and filed a counterclaim for divorce, later amending it to allege the ground of living separate and apart for two years without cohabitation.
- The trial court granted the divorce to Larry Bennington, finding the two-year separation requirement had been met.
- The trial court also ordered Larry to pay alimony to Mary and ordered the sale and division of marital property.
- Mary Bennington, as appellant, appealed the trial court's judgment to the intermediate court of appeals.
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Issue:
Does a married couple live 'separate and apart' for the purposes of a no-fault divorce statute when one spouse moves into a separate dwelling on the same property but continues to perform marital duties and assist the other spouse?
Opinions:
Majority - McCormac, J.
No. A married couple does not live 'separate and apart' under the statute simply by residing in different structures on the same property if they continue to maintain their marital duties and relations. The Ohio statute, R. C. 3105.01(K), requires two distinct elements for a divorce on this ground: living 'separate and apart' and doing so 'without cohabitation.' While the parties in this case lacked cohabitation, they were not living 'separate and apart' in a marital sense from 1974 to 1976. During that time, there was no cessation of marital duties, as the husband continued to assist his disabled wife as he had before moving into the van. Furthermore, the husband's own testimony showed he did not intend to end the marital relationship until he physically left the premises in November 1976. Therefore, the statutory two-year period could only begin from that date, not from the date he moved into the van.
Analysis:
This decision clarifies the meaning of 'separate and apart' in no-fault divorce statutes, establishing that it requires more than just physical separation. The court added a qualitative element, focusing on whether a complete breakdown of the marital relationship has occurred, evidenced by a cessation of marital duties. This precedent instructs lower courts to look beyond mere living arrangements and examine the substance of the parties' interactions and intentions. It prevents spouses from 'banking' separation time while still functioning as a marital unit, thus requiring a definitive and unambiguous end to the marital relationship for the statutory clock to begin.
