Under prior case law, living “separate and apart” meant a cessation of habitation as well as sexual relations. When asking the question “are we still separated” today, while this is still the main precedent, there are some additions.
The older cases repeatedly held that the separation requirement was not met if, during the one-year period, the couple engaged in sexual relations. Even isolated or casual acts of sexual intercourse were held to halt the statutory one-year period required for divorce predicated on separation. This strict rule about isolated sexual contact created many problems.
The Legislature amended the relevant statute in 1987; and the following provision was added: Whether there has been a resumption of marital relations during the period of separation shall be determined pursuant to G.S. 52-10.2. Isolated incidents of sexual intercourse between the parties shall not toll [halt] the statutory period required for divorce predicated on separation of one year. G.S. 52-10.2 provides: “Resumption of marital relations” shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.
Isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations. Under present law, isolated incidents of sexual intercourse do not stop the statutory one-year period from running, provided such incidents do not amount to a “resumption of marital relations.”
Whether or not such resumption of marital relations occurs is to be determined by “the totality of the circumstances.” That means that one incident of sex is unlikely to stop the year’s running, but no one knows for sure how much sex is “too much” for purposes of calculating the consecutive one-year period required for divorce.
