One year separation, which is South Carolina’s only no-fault grounds for divorce, requires that the parties live in separate domiciles for a period of time in excess of one year. Living in separate rooms in the marital home does not constitute living separate and apart.
While a separation and divorce often occurs as a result of the unilateral act of one party, the consciousness of the other party that such a separation has occurred is essential. A spouse who is separated as a result of confinement to a mental hospital on account of insanity is not capable of being conscious that a separation has occurred.
One party must be voluntarily living separate and apart. Involuntarily military duty may be counted towards the one year required for a divorce on the grounds of one year separation when one’s spouse serves in the military and the parties separated before the military service begins or when the separation is independent of military service.
To prove one year separation, there must be evidence that the parties lived separate and apart for more than one year, without intervening marital cohabitation. Typically, the Court requires corroboration by a third party who attests to the fact that the parties have lived separate and apart for a period of time in excess of one year.
The typical defense to a one year divorce claim is that the parties have in fact resumed marital cohabitation, even for one night, during the claimed one year period of separation.
The fact that one party is not conscious of the separation, or did not do so voluntarily, is also a defense.
Collusion, which typically a fault-based defense, applies to a claim for divorce on the grounds of one year of continuous separation. However, the other fault based defenses, such as connivance, recrimination, condonation, and provocation (discussed below) do not typically apply for to a claim for a one year divorce.