23 Pa.C.S. 3301(d) Divorces: What Does Living Separate and Apart Mean?

Pennsylvania’s divorce code recognizes two different types of no fault divorce. The first, which is found at 23 Pa.C.S. sec. 3301(c), allows to spouses to divorce 90 days after filing is both of them consent to the divorce by filing with the court an affidavit of consent.

The second type of no fault divorce in Pennsylvania is found at 23 Pa.C.S. sec. 3301(d) and is granted by the court at the request of only one party if the spouses have been living separate and apart for two years. If your case falls under 3301(d), you need to know what living separate and apart means in Pennsylvania.

If the parties live in separate homes and are together only sporadically, they are living separate and apart (Pangallo v Pangallo, 477 A.2d 885 (Pa. Super. 1985)) even if they occasionally have sexual relations (Thomas v Thomas, 483 A.2d 945 (Pa. Super. 1984). But where the parties spend time together regularly during which time Wife washes Husbands clothes and cooks for him, and they have sex once a month, then they are not living separate and apart (Wellner v Wellner, 699 A.2d 1278 (Pa. Super. 1997)).

But under Pennsylvania law, the parties can be living in the same house and yet still be living separate and apart. How can this be? In one case, the parties shared a farm house but slept in separate rooms, sharing only a few common areas, preparing their own meals. They did not have sexual relations. Sometimes they ate together and the Wife cleaned the entire house, and they even acted as if they were still together when playing doubles tennis and entertaining family, but this was not enough to defeat the claim that they were living separate and apart (Mackey v Mackey, 545 A.2d 362 (Pa. Super. 1988)).

Leave a Reply