187 S.E.2d 355 | N.C. Ct. App. | 1972
Doris Burton BECK
v.
Henry Clay BECK.
Court of Appeals of North Carolina.
George W. Saintsing, Thomasville, for plaintiff appellee.
William H. Steed, Thomasville, for defendant appellant.
GRAHAM, Judge.
Defendant contends that in order to be entitled to a divorce a plaintiff must show that a marital separation for the statutory period was by mutual agreement or under a decree of court. This was true prior to 1937. In that year the divorce statute was amended so as to remove this requirement. Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902. During the past 35 years a husband and wife have been deemed to live separate and apart within the meaning of the divorce statute when: (1) they live separate and apart physically for an interrupted period *356 of time at least as long as the time required by the divorce statute; and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation. See Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525; Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 and cases cited.
Affirmed.
CAMPBELL and BRITT, JJ., concur.