Spouses living separate lives in the same residence are still living together for purposes of determining whether acquired property belongs to the marital community, the Supreme Court holds today. A statute provides that property is the separate property of a spouse who gets it “while living separate and apart from the other spouse.” In its opinion in In re Marriage of Davis, the court concludes that “[t]he statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property.”
The court’s unanimous opinion, authored by Chief Justice Tani Cantil-Sakauye, traces the statutory language to legislation enacted in 1870, legislation the court finds “was intended to afford married women some additional protection from the rigors of the law generally denying them control over their earnings and separate property.” Justice Goodwin Liu, joined by Justice Kathryn Werdegar, writes a concurring opinion to address an issue the lead opinion expressly declines to decide. Both Liu and Werdegar signed the court’s opinion, but they stress that legislative history does not preclude spouses living under the same roof from “living separate and apart” for purposes of the statute. According to them, spouses can be living separate and apart if they “have a living arrangement that clearly and objectively signals a complete and final termination of the marital relationship.”
Liu and Werdegar are less charitable to the 1870 Legislature than is the lead opinion. While the court characterizes the legislation as giving married women “some additional protection,” the concurring opinion notes that the Legislature could have given even more protection, but that would have come “at the expense of the male-controlled property regime, and there is no indication that the Legislature in 1870 had any interest in fundamentally changing that regime.”
The court reverses the First District, Division One, Court of Appeal. It also approves of a divided 2002 Sixth District opinion.
