Marriage of Davis

Filed 7/20/15

IN THE SUPREME COURT OF CALIFORNIA

)
In re Marriage of SHERYL JONES )
DAVIS and KEITH XAVIER DAVIS. )
____________________________________)
)
SHERYL JONES DAVIS, )
) S215050
Respondent, )
) Ct.App. 1/1 A136858
v. )
) Alameda County
KEITH XAVIER DAVIS, ) Super. Ct. No. RF08428441
)
Appellant. )
____________________________________)

In a marital dissolution proceeding, a court determines the division of
property between the spouses by first characterizing the parties‘ property as
community property or separate property. (In re Marriage of Valli (2014) 58
Cal.4th 1396, 1399.) Family Code section 760 provides that all property acquired
by the spouses during the marriage is community property ―[e]xcept as otherwise
provided by statute.‖ One such statute is Family Code section 771, subdivision (a)
(section 771(a)), which provides that ―[t]he earnings and accumulations of a
spouse . . . , while living separate and apart from the other spouse, are the separate
property of the spouse.‖ In this case we consider whether a couple may be ―living
separate and apart,‖ for purposes of section 771(a), when they live together in the
same home. We conclude the answer is no. The statute requires the spouses to be
living in separate residences in order for their earnings and accumulations to be
their separate property. Because the Court of Appeal concluded otherwise, we
reverse its judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Keith Xavier Davis (husband) and Sheryl Jones Davis (wife) were married
on June 12, 1993. They have two children, a daughter born in August 1995 and a
son born in November 1999. Wife filed for dissolution on December 30, 2008.
At trial on the issue of the date of their separation, wife described the
couple‘s marriage as turbulent. She testified that they stopped being sexually
intimate after their son was conceived in 1999. They never went on a ―date‖ after
their son was born. The parties disagreed as to when they stopped sharing a
bedroom in their marital home. Husband testified wife moved to another bedroom
in 2001; wife testified this happened in 2004. Their trial testimony indicates that
they both attended the children‘s activities, but traveled to the locations by
separate cars. Wife did her own and the children‘s laundry. Husband did his
laundry. Both parties prepared meals, but wife would not prepare something
different for husband if he was dissatisfied with the meal she made for herself and
the children. The parties took some family vacations together, but also took
separate vacations. In deposition testimony, wife claimed that by 2004 they were
―living entirely separate lives.‖ They spoke about divorce, but stayed together for
the sake of the children.
The parties maintained a joint bank account from the beginning of their
marriage, which wife managed. In 2001, however, husband started his own
business and at some point opened a separate bank account. In 2003, wife
reactivated a separate bank account of her own to manage her business funds and
pay for her personal expenses. Husband contributed $3,200 a month to the
parties‘ joint account from his separate account for the payment of household

2
expenses. But both parties were unhappy with each other‘s contributions to the
joint account. In January 2006, husband became employed by Clorox,
substantially increasing his earnings. Wife was frustrated when he did not
increase his financial support to the household.
On June 1, 2006, after the end of their son‘s school year, wife announced to
husband that she was ―through‖ with the marriage. According to her, the ―last
component‖ of their marriage was their finances. On June 1, 2006, wife presented
husband with a financial ledger that itemized their joint household expenses and
their individual expenses. She did this because she wanted the parties to
contribute equally to running the home and funding the children‘s expenses, while
being solely responsible for their own respective personal expenses. Wife
removed husband from her American Express credit account and returned several
of husband‘s credit cards to him. She believed at this point that they were acting
simply as roommates. In July 2006, wife began working full-time, substantially
increasing her earnings. Husband left his job with Clorox in September 2006.
The parties continued to live in the marital home after June 1, 2006. Wife
continued to keep her personal belongings there. She continued to receive mail
and telephone calls there. She continued to cook meals at the home when she was
in town, although she often traveled for her work. She did not change the address
on her driver‘s license. In August 2006, the parties took a family vacation to
Hawaii with their children. However, they subsequently took no out-of-state
vacations with one another. They continued to celebrate special occasions, such as
birthdays and holidays, together as a family as they had previously done. They
both continued to use their joint bank account.
When wife filed the petition for dissolution of the marriage on
December 30, 2008, she listed the date of their separation as June 1, 2006. In his
initial response to wife‘s petition, husband listed the date of separation as

3
January 2, 2009 (a few days after wife‘s filing of the petition). Wife did not move
out of the marital home until July 2011. Husband subsequently filed an amended
response listing the date of separation as July 1, 2011.
After trial of the issue, the court found the date of separation to be June 1,
2006. The Court of Appeal affirmed. In relevant part, it disagreed with the
majority decision in In re Marriage of Norviel (2002) 102 Cal.App.4th 1152
(Norviel), which held that physically living apart is ―an indispensable threshold
requirement‖ for separation under section 771(a). (Norviel, supra, at p. 1162.)
We granted review to resolve the apparent conflict in interpretation of the statute.
II. DISCUSSION

A. Contentions of the parties and standard of review
Husband contends that spouses cannot be ―living separate and apart‖ for
purposes of section 771(a) when they continue to share a residence. He urges such
a bright-line rule in order to provide clear guidance to judges and a measure of
predictability to attorneys and litigants. Wife contends that no particular fact,
including place of residence, is determinative. Instead, wife argues that a court
should consider the totality of the circumstances and decide the date of separation
based on conduct by either or both of the spouses evidencing a complete and final
intent to part ways with no plan of resuming the marital relationship, even if at that
time they are still living in the same residence. According to wife, husband‘s
proposed bright-line rule is unworkable and would lead to harsh results. Husband
claims the same thing about wife‘s proposed rule.
Although the date of separation is normally a factual issue to be reviewed
for substantial evidence (In re Marriage of Manfer (2006) 144 Cal.App.4th 925,
930 (Manfer)), resolution of the opposing contentions here depends on statutory
construction of the language of section 771(a), a question of law to which we

4
apply a de novo standard of review. (Ceja v. Rudolph & Sletten, Inc. (2013) 56
Cal.4th 1113, 1119.)

B. Statutory construction of section 771(a)
Section 771(a) is part of California‘s statutory community property scheme,
a system of law that ―originated in continental Europe, came to Mexico from
Spain, and became California law through the treaty of 1848.‖ (11 Witkin,
Summary of Cal. Law (10th ed. 2005) Community Property, § 1, p. 529; see In re
Marriage of Bonds (2000) 24 Cal.4th 1, 12.) In interpreting the language of
section 771(a), as with all questions of statutory construction, ―our objective ‗is to
ascertain the intent of the lawmakers so as to effectuate the purpose of the
statute.‘ ‖ (Ceja v. Rudolph & Sletten, Inc., supra, 56 Cal.4th at p. 1119.) This
principle is especially important in construing a statute within the community
property scheme because the system itself is a ―creature of statute.‖ (1 Bassett,
Cal. Community Property Law: A Treatise on Marital Property Rights (3d ed.
1994) Origins & Development, § 1:4, p. 8 (Bassett).)
― ‗We begin with the plain language of the statute, affording the words of
the provision their ordinary and usual meaning and viewing them in their statutory
context, because the language employed in the Legislature‘s enactment generally
is the most reliable indicator of legislative intent.‘ [Citations.] The plain meaning
controls if there is no ambiguity in the statutory language. [Citation.] If, however,
‗the statutory language may reasonably be given more than one interpretation,
― ‗ ―courts may consider various extrinsic aids, including the purpose of the
statute, the evils to be remedied, the legislative history, public policy, and the
statutory scheme encompassing the statute.‖ ‘ ‖ ‘ ‖ (People v. Cornett (2012) 53
Cal.4th 1261, 1265.)

5
 1. The plain meaning of “living separate and apart”
As noted earlier, section 771(a) states that ―[t]he earnings and
accumulations of a spouse . . . , while living separate and apart from the other
spouse, are the separate property of the spouse.‖ (Italics added.)
In considering whether this statute has a plain meaning, we recognize that
―the phrase ‗living separate and apart‘ is a term of art.‖ (1 Kirkland et al., Cal.
Family Law: Practice and Procedure (2d ed. 2014) Characterization — Division
in General, § 20.06[2][a], p. 20-26.) As such, it has been defined in Black‘s Law
Dictionary as spouses ―residing in different places and having no intention of
resuming marital relations‖ (Black‘s Law Dict. (7th ed. 1999) p. 945, col. 2, italics
added) and more recently as spouses ―living away from each other, along with at
least one spouse‘s intent to dissolve the marriage.‖ (Black‘s Law Dict. (10th ed.
2014) p. 1076, col. 2, italics added.) These definitions contemplate both a
physical separation of residence and an accompanying intent to end the marital
relationship. They incorporate an ordinary and common linguistic understanding
of the word ―apart,‖ used as an adverb, as being ―[a]t a distance in place, position,
or time‖ or ―[a]way from‖ and the word ―separate‖ as denoting being ―ke[pt]
apart,‖ ―space[d] apart‖ or ―scatter[ed].‖ (Amer. Heritage Dict. (4th ed. 2000) pp.
82, col. 2, 1587, col. 1; accord, Webster‘s 3d New Internat. Dict. (2002) p. 98, col.
2 [defining ―apart‖ as ―at a ‗ ―distance,‖ ―separate[] in space or time‖].)1
Indeed, both legal usage of the phrase ―living separate and apart‖ and
colloquial understanding of what it means for someone to live ―separate‖ and

1 Although not binding, it can be useful to refer to the dictionary definition of
a word in attempting to ascertain the meaning of statutory language. (Wasatch
Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122; MacKinnon
v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 649.)

6
―apart‖ from someone else do not include persons living together in the same
home. Ordinary usage of the language itself contemplates the parties‘ occupation
of separate residences. Therefore, the statute on its face appears to have a
commonly understood, plain meaning.
Nevertheless, we recognize that the phrase as used in section 771(a) is not
without at least some ambiguity. The phrase ―living separate and apart‖ could less
likely, but still plausibly, be read to mean that the spouses are in effect ―living
separate lives‖ with the requisite intent to end the marital relationship. (See
Webster‘s 3d New Internat. Dict., supra, p. 2069, col. 3 [defining the adjective
―separate‖ as ―not shared with another,‖ ―existing by itself: autonomous,
independent‖ or ―distinct, different‖].) Such an interpretation would not require
separate residences for purposes of section 771(a). Instead, it would focus a
court‘s attention on the spouses‘ independence or autonomy from each other in
their daily living. Under this understanding of the statutory phrase, physical
separation would, as wife contends, be simply one of many factors to consider in
determining the date of a couple‘s separation.
To consider whether the Legislature intended the language of section
771(a) to encompass this less likely, but still possible secondary meaning, we turn
to extrinsic aids — the statute‘s long history, its prior judicial construction, and the
Legislature‘s use of the phrase elsewhere in the Family Code — to consider what
light they may shed on the Legislature‘s intent. We find evidence there bolstering
the ordinary and common meaning of the language as requiring separate
residences along with demonstrated intent to finally end the marital relationship
before a spouse‘s earnings and accumulations are considered that spouse‘s
separate property.

7
 2. Consideration of extrinsic aids
The language of section 771(a) originated in a predecessor statute that was
enacted 145 years ago in 1870. (Stats. 1870, ch. 161, p. 226, entitled ―An Act to
protect the rights of married women in certain cases‖ — hereafter the 1870 Act.)
In its first section, the 1870 Act provided that ―the earnings of [a] wife‖ were ―not
liable for the debts of [her] husband.‖ (1870 Act, Stats. 1870, ch. 161, § 1,
p. 226.) More significantly for our purposes, in language identical to section
771(a) except for the original text‘s restriction to wives, the 1870 Act provided
that ―[t]he earnings and accumulations of the wife . . . , while the wife is living
separate and apart from her husband, shall be the separate property of the wife.‖
(Id., § 2, p. 226.) Further, the 1870 Act specified that a wife ―living separate and
apart from her husband‖ had ―sole and exclusive control [over] her separate
property,‖ could ―sue and be sued,‖ without joinder of her husband, and could
―avail herself of and be subject to all legal process in all actions, including actions
concerning her real estate.‖ (Id., § 3, p. 226.)
The 1870 Act did not contain a definition of the phrase ―living separate and
apart‖ used in section 2. (Stats. 1870, ch. 161, § 2, p. 226.) However, the
Legislature‘s understanding that the phrase connoted a threshold requirement of
separate residences may be discerned from an additional section of the statute.
Section 4 of the 1870 Act provided a procedure for a wife who was ―living
separate and apart‖ from her husband to sell her real property without joining with
her husband. To do so, the wife was required to record a verified and
acknowledged declaration ―containing a description of such real estate, the name
of her husband, her own place of residence, and [stating] that she is a married
woman, living separate and apart from her husband.‖ (1870 Act, Stats. 1870,
ch. 161, § 4, p. 226, italics added.) The statutory requirement that the wife state in
a declaration ―her own‖ place of residence that is ―separate and apart from her

8
husband‖ strongly suggests that the 1870 Act was directed at a situation where the
spouses had physically separated and the wife in fact had ―her own‖ residence. It
is some indication that the 1870 Legislature had in mind what we have described
as the common meaning of the language when it first adopted it.
In this regard, we find it additionally helpful to recall the historical context
of the 1870 Act. At that time, married women had very limited power over their
property. In the absence of a binding premarital agreement, the husband had the
absolute right of ―management and control‖ of the community property of the
marriage, including the power of sale of assets. (Stats. 1850, ch. 103, §§ 9, 14,
pp. 254-255.) Under the original 1850 statute defining spousal property rights, the
―rents and profits of the separate property‖ of both husband and wife were deemed
community property and were, therefore, under the exclusive control of the
husband. (Id., § 9, p. 254.) In addition, the husband had the ―right of management
and control‖ of the wife‘s separate property ―during the continuance of the
marriage.‖ (Id., § 6, p. 254.) Her protection against her husband‘s inappropriate
sale of her separate property ―during the continuance of the marriage‖ lay in a
procedural requirement that the sale or encumbrance must be in an instrument in
writing signed by both husband and wife, and her protection against her husband‘s
general mismanagement of her separate property during the marriage lay in an
application to the court for the appointment of a trustee to act on her behalf. (Id.,
§§ 6, 8, p. 254.)
Between 1850 and 1870, the Legislature recognized a few circumstances
under which a married woman could have some control over her separate
property. By legislation in 1852, a married woman was given authority to run a
business in her own name under limited circumstances as a ―sole trader‖ and under
such circumstances, could retain the earnings of such a business as her separate
property; they were not subject to the debts of her husband and she had the

9
authority to sue her debtors. (See Bassett, supra, § 1:3, at pp. 6-7.) By legislation
in 1853, if the terms of an instrument bequeathing, devising or gifting property to
the wife provided that the rents and profits were to ―be applied to her sole and
separate use,‖ the wife could manage and dispose of such rents and profits. (Stats.
1853, ch. 116, § 1, p. 165.) Legislation adopted in 1855 gave a married woman
whose husband was absent from the state for a year the right to convey her
separate property real estate (Stats. 1855, ch. 17, § 1, p. 12), but apparently not any
other property left in her possession. (See Prager, The Persistence of Separate
Property Concepts in California’s Community Property System, 1849-1975 (1976)
24 UCLA L.Rev. 1, 39-41 (Prager); Stats. 1852, ch. 42, p. 101.)
Nevertheless, under the statutory scheme in effect in 1870, until entry of a
decree of dissolution of the marriage (Stats. 1850, ch. 103, § 12, p. 255 [requiring
a division of a couple‘s community property in the decree of dissolution]), it
appears that a woman who was either involved in divorce proceedings or whose
husband had deserted or otherwise left her, and who did not have separate property
coming within one of the statutory provisions giving her control over it, would
have no right of access to the financial sustenance needed to meet the expenses of
daily life on her own. Commentators have observed that the law‘s restrictive
provisions at this time were to some extent inconsistent with traditional principles
of community property law — principles that actually afforded more legal
protection to women than did the common law principles that seem to have
filtered into the California system. (See Prager, supra, 24 UCLA L.Rev. at pp. 34-
46; see also Cammack, Marital Property in California and Indonesia: Community
Property and Harta Bersama (2007) 64 Wash. & Lee L.Rev 1417, 1431-1433;
Schuele, Community Property Law and the Politics of Married Women’s Rights in
Nineteenth Century California (1994) 7 W. Legal His. 245, 262-264; Bassett,
supra, § 1:3, at pp. 7-8.)

10
 When read as a whole and in this context, it seems evident that the 1870
Act 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. Under the authority of the 1870 Act, a wife whose husband was not
physically living with her could undertake to support herself in her ―own‖
residence. Unlike other married women, she could retain her earnings and
accumulations as her separate property to maintain her separate residence. She
was given the right to control and dispose of her separate property. She could sue
and be sued without the joinder of her husband. Nothing in the 1870 Act indicates
a different intent — to characterize a wife‘s earnings and accumulations as her
separate property while she was still physically living with her husband in the
marital home so long as she and her husband were sufficiently leading ―separate
lives.‖ To the contrary, the 1870 Act should be understood as a limited exception
to the general rule of that time that the husband had full management and control
over the marital and separate assets for the duration of the marriage. It appears the
Legislature was concerned only with the special and limited circumstance of a
wife who was living physically separate from her husband. Such a wife was likely
to be incurring separate expenses associated with her separate residence and could
be anticipated to need the authority to separately maintain, control and manage
such property. In such a situation, the 1870 Legislature determined an exception
to the normal community property characterization of earnings and accumulations
acquired during marriage and husband‘s control was appropriate.
When the Legislature adopted the Civil Code in 1872, it enacted a version
of section 2 of the 1870 Act as Civil Code section 169 (former section 169). As
enacted in 1872, former section 169 provided that ―[t]he earnings and
accumulations of the wife . . . , while she is living separate from her husband, are
the separate property of the wife.‖ (Civ. Code, § 169, as adopted 1872.) Again,

11
nothing suggests that the 1872 Legislature contemplated that anything other than
separate residences would qualify as ―living separate,‖ i.e., that it intended the
language to be construed differently from its common and ordinary meaning. In
fact, the Legislature enacted at the same time section 5 of the Civil Code, which
states that ―[t]he provisions of this Code, so far as they are substantially the same
as existing statutes or the common law, must be construed as continuations
thereof, and not as new enactments.‖ Because former section 169 was
substantially the same as section 2 of the 1870 Act, Civil Code section 5 directs
that it be interpreted as continuing in effect the former law.
Moreover, it might reasonably be suggested that the lack of a statutory
definition of the phrase is some indication itself that the Legislature intended the
ordinary meaning to apply. Otherwise, the Legislature would likely have provided
a specialized definition of the term. It did not.
And indeed, with respect to the language now found in section 771(a), from
the earliest cases on, the issue presented regarding the interpretation of the statute
was not whether separate places of residence were a prerequisite for application of
the law, but rather whether separate residences sufficed. That question was
answered in the negative.
For example, in 1874, this court held that the 1870 Act did not apply when
the evidence showed that the wife was only temporarily physically separated from
her husband. We concluded that for the wife to be ― ‗living separate and apart‘ ‖
within the meaning of the statute ―[t]here must have been an abandonment on the
part of the husband or wife, or a separation which was intended to be final.‖
(Tobin v. Galvin (1874) 49 Cal. 34, 36-37.)
On the other hand, a husband and wife were living separate and apart
within the meaning of former section 169 where the husband left his wife, lived in
a separate town, and determined during his absence that he would never resume

12
marital relations with his wife, while his wife and children continued to live in the
marital home, where the wife kept boarders and did other work to support herself
and the children. (Loring v. Stuart (1889) 79 Cal. 200, 201-202; see Tagus Ranch
Co. v. First Nat. Bk. (1935) 7 Cal.App.2d 457 [money borrowed by wife who had
been deserted by her husband constituted her separate property under former
section 169].) These facts illustrate the apparent purpose of the statute: to provide
for an estranged wife, whose husband was not physically living with her, a means
of maintaining herself in her separate place of residence by allowing her earnings
and accumulations to be her separate property.
Without questioning whether separate residences was a necessary predicate,
courts struggled to articulate a uniform standard for determining the date of
separation in circumstances where the parties had moved into separate homes.
The court in Makeig v. United Security Bk. & T. Co. (1931) 112 Cal.App.
138 (Makeig), for example, summarized the then-existing law and concluded that
―[l]iving separate and apart . . . , as contemplated by section 169, does not apply to
a case where a man and wife are residing temporarily in different places due to
economic or social reasons, but applies to a condition where the spouses have
come to a parting of the ways and have no present intention of resuming marital
relations and taking up life together under the same roof.‖ (Id., at p. 143, italics
added.) The court explained that ―[u]nder modern conditions there is many a man
living and working in one place and his wife living and working in another, seeing
one another only on week ends, sometimes not for months at a time, yet they are
not living separate and apart within the meaning of the section, for there has been
no marital rupture, and there is a present intention to live together as man and
wife, and their status is only temporary, although it may happen that the condition
might exist for some years.‖ (Id., at pp. 143-144; accord, Kerr v. Kerr (1960) 182

13
Cal.App.2d 12, 18 [evidence showed that there was no final parting of the ways or
intention not to resume marital relations under the same roof until such time as
wife refused to permit husband‘s return to their home].)
Subsequent legislative developments suggest no intent to change the
meaning of the phrase ―living separate and apart.‖ In 1969, the Legislature
repealed the family law portions of the Civil Code and replaced them with the
Family Law Act. (Stats. 1969, ch. 1608, §§ 3, 6, 8, pp. 3313-3314.) Relevant to
our discussion, former section 169 was repealed and Civil Code section 5118
(former section 5118) was adopted. (Stats. 1969, ch. 1608, § 8, p. 3340.) Like its
predecessor, former section 5118 provided that ―[t]he earnings and accumulations
of the wife . . . , while she is living separate from her husband, are the separate
property of the wife.‖ (Stats. 1969, ch. 1608, § 8, p. 3340.) As before, no
specialized definition of the language was provided, and by enacting language
identical to former section 169, the 1969 Legislature once again expressed its
intent to continue in effect the former law. (Civ. Code, § 5.) Therefore, as it did
originally, the statute continued to address the situation in which a wife was living
estranged in a separate residence from her husband.
We pause at this point to observe that by this time the Legislature had also
used the phrase ―living separate and apart‖ elsewhere in the Civil Code. Civil
Code former section 34.6 specified certain circumstances under which ―a minor 15
years of age or older who [was] living separate and apart‖ from his or her parents
or legal guardian, ―whether with or without the consent of a parent or guardian and
regardless of the duration of such separate residence,‖ could consent to his or her
own medical or dental care. (Civ. Code, former § 34.6, added by Stats. 1968,
ch. 371, § 1, p. 788, italics added.) Former section 34.6 was repealed in 1992
(Stats. 1992, ch. 163, § 2, p. 724), but its substance was restated in Family Code
section 6922, where it continues to use the phrase ―living separate and apart‖ to

14
mean the minor occupies a separate residence. (Fam. Code, § 6922, subd. (a)(2);
see Family Code, 22 Cal. Law Revision Com. Rep. (1992) foll. § 6922, p. 545
[―Section 6922 restates former Civil Code § 34.6 without substantive change.‖].)
This statute further supports our view that the Legislature likely intends the
common meaning of the language when it uses this statutory phrase.
Returning to the predecessor statutes to section 771(a), we note that in
1971, the Legislature amended the Family Law Act to address an inequity that had
developed in the treatment of husbands and wives. (Assem. Com. on Jud.,
Analysis of Assem. Bill No. 1549 (1971 Reg. Sess.) May 10, 1971.) By this time,
under Civil Code former section 5119, the earnings and accumulations of either
spouse became the separate property of such spouse after rendition of a judgment
of legal separation. (Civ. Code, former § 5119, subd. (a), added by Stats. 1969,
ch. 1608, § 8, p. 3340.) In addition, the earnings and accumulations of a husband
became his separate property after rendition of an interlocutory judgment of
dissolution and while he was living separate and apart from his wife. (Civ. Code,
former § 5119, subd. (b), added by Stats. 1969, ch. 1608, § 8, pp. 3340-3341.) But
under former section 5118, the earnings and accumulations of a wife while she
was living separate from her husband were her separate property regardless of
whether an interlocutory judgment of dissolution had been rendered. (Former
§ 5118, added by Stats. 1969, ch. 1608, § 8, p. 3340.) In 1971, the Legislature
repealed subdivision (b) of former section 5119 and amended former section 5118
to provide equal treatment by specifying that ―[t]he earnings and accumulations of
a spouse . . . , while living separate and apart from the other spouse, are the
separate property of the spouse.‖ (Stats. 1971, ch. 1700, pp. 3639-3640, italics
added.) Nothing in the legislative history, however, indicates any intent to change

15
the original (and commonly understood) meaning of the phrase ―living separate
and apart.‖2 Rather, the focus was simply on equalizing the treatment of husbands
and wives. (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 588 [The
Legislature‘s purpose in amending the statute was likely to address its possible
constitutional infirmity as gender discrimination.].)
The post-1971 cases continued to refine the description of what was
necessary for application of former section 5118. But again, none of them
questioned that a threshold requirement was separate residences. In In re
Marriage of Baragry (1977) 73 Cal.App.3d 444 (Baragry), the appellate court
reversed a trial court‘s determination that the parties had separated on the date that
the husband moved out of the marital home. (Id., at p. 449.) The reviewing court
observed that the fact that husband and wife lived in separate residences was not
determinative of whether they were ―living separate and apart‖ for purposes of
former section 5118. The court stated: ―The question is whether the parties‘
conduct evidences a complete and final break in the marital relationship.‖
(Baragry, supra, at p. 448.) It found no such conduct in the case before it because
the husband maintained continuous and frequent contact with his family after
moving from the marital home. He continued to eat dinner at the home,
maintained his mailing and voter registration address at the home, sent his wife

2 The 1870 Act used the phrase ―living separate and apart from her husband.‖
(1870 Act, Stats. 1870, ch. 161, § 1, p. 226.) Former section 169 in 1872 and
former section 5118 in 1969 both used the phrase ―living separate from her
husband.‖ The 1971 amendment to former section 5118 restored the phrase
―living separate and apart.‖ (Stats. 1971, ch. 1700, § 1, p. 3640.) The difference
in wording has not been considered significant. (Bruch, The Legal Import of
Informal Marital Separations: A Survey of California Law and a Call for Change
(1977) 65 Cal. L.Rev. 1015, 1020, fn. 11, and cases cited therein.)

16
cards and gifts, took her to social occasions, had her do his laundry, and otherwise
maintained the appearance of being married. He never informed his wife that he
had no intention of reconciling. (Id., at pp. 447-448.)
Similarly, a reviewing court concluded the evidence supported a
determination that a husband and his wife were not ―living separate and apart‖
under former section 5118 even though the wife had moved out of the marital
home, in a case in which they continued their sexual relationship, sought marriage
counseling and made multiple efforts at reconciliation. (In re Marriage of
Marsden (1982) 130 Cal.App.3d 426, 432-435.)
In In re Marriage of Umphrey (1990) 218 Cal.App.3d 647 (Umphrey),
another case in which the spouses were living in separate residences, the Court of
Appeal cautioned that in determining the date of separation for purposes of former
section 5118, courts are ―duty bound to consider all of the relevant evidence‖
regarding ― ‗whether the parties‘ conduct evidences a complete and final break in
the marital relationship.‘ ‖ (Umphrey, supra, at p. 657, quoting Baragry, supra,
73 Cal.App.3d at p. 448.) It concluded that the parties‘ stipulation to a separation
date after they physically moved apart was not conclusive. (Ibid.)
In 1989, the Legislature directed the Law Revision Commission to organize
disparate statutes into a Family Code. (Family Code, 22 Cal. Law Revision Com.
Rep., supra, p. 7.) In 1992, the Legislature enacted the Family Code, operative
January 1, 1994. In pertinent part, the language of former section 5118 was placed
into Family Code section 771. (Stats. 1992, ch. 162, § 10, p. 489.) The Law
Revision Commission comment to section 771 states that ―[s]ection 771 continues
. . . Civil Code [former] [s]ection 5118 without change.‖ (Family Code, 22 Cal.

17
Law Revision Com. Rep., supra, com. foll. § 771, p. 137; see also Cal. Law
Revision Com. com., 29C West‘s Ann. Fam. Code (2004 ed.) foll. § 771, p. 405.)3
In 1994, the issue of the proper construction of the phrase ―living separate
and apart‖ was again before the court in In re Marriage of von der Nuell (1994) 23
Cal.App.4th 730 (von der Nuell). The von der Nuell court concluded that the trial
court erred in holding the date of separation of the parties was the date the
husband moved out of the family residence even if the parties had, at that time, no
intent to resume marital relations. (Id., at p. 732.) The court held that ―legal
separation requires not only a parting of the ways with no present intention of
resuming marital relations, but also, more importantly, conduct evidencing a
complete and final break in the marital relationship.‖ (Id., at p. 736, italics
changed.) By requiring both subjective intent and demonstrated conduct, the von
der Nuell court essentially combined the requirements of Makeig, supra, 112
Cal.App. at p. 143 and Baragry, supra, 73 Cal.App.3d at p. 448. (In re Marriage
of Hardin (1995) 38 Cal.App.4th 448, 451 (Hardin) [making this observation].)
Pointing to evidence of the parties‘ attempts to reconcile, the von der Nuell court
found that it was not until some years after the couple separated physically that
their conduct evidenced the complete and final break in their marital relationship
that was necessary to constitute ―living separate and apart.‖ (von der Nuell, supra,
at pp. 732, 734-737.)
In Hardin, supra, 38 Cal.App.4th 448, the Court of Appeal likewise
reversed a trial court‘s finding that the parties had separated on the date that
husband moved out of their residence. Like the court in von der Nuell, the Hardin

3 In 1999, the language of section 771 was designated section 771(a) without
change. (Stats. 1999, ch. 940, § 1, p. 6859.)

18
court concluded that both subjective intent to end the marriage and objective
conduct demonstrating such intent is necessary for legal separation. (38
Cal.App.4th at p. 451.) ―Simply stated, the date of separation occurs when either
of the parties does not intend to resume the marriage and his or her actions
bespeak the finality of the marital relationship. There must be problems that have
so impaired the marriage relationship that the legitimate objects of matrimony
have been destroyed and there is no reasonable possibility of eliminating,
correcting or resolving these problems.‖ (Ibid.) The court declared that ―[a]ll
factors bearing on either party‘s intentions ‗to return or not to return to the other
spouse‘ are to be considered,‖ but ―[n]o particular facts are per se determinative.‖
(Id., at p. 452.) ―The ultimate question to be decided in determining the date of
separation is whether either or both of the parties perceived the rift in their
relationship as final. The best evidence of this is their words and actions. The
husband‘s and the wife‘s subjective intents are to be objectively determined from
all of the evidence reflecting the parties‘ words and actions during the disputed
time in order to ascertain when during that period the rift in the parties‘
relationship was final.‖ (Id., at p. 453.)4

4 The reviewing court in Manfer, supra, 144 Cal.App.4th 925, found
Hardin‘s articulation of the standard for determining the date of separation to be
the most helpful. In Manfer, the husband moved out of the marital home and wife
decided that their stormy marriage was finally over, but the parties agreed to hide
their circumstances from family and friends until after the year-end holidays. The
Court of Appeal held that the trial court ―erroneously applied an ‗outsider‘s
viewpoint‘ standard to defer the date of separation to [a date] after the parties had
revealed to the world their hitherto secret that the marriage was over.‖ (Id., at
p. 927.) The Manfer court stated that ―[t]he date-of-separation test does not ask
what the public thinks, but whether at least one of the parties intended to end the
marriage and whether there was objective conduct ‗bespeak[ing] the finality of the
marital relationship.‘ ‖ (Id., at p. 928.) Once again, as in all the other cases
discussed previously, the facts in Manfer involved the separation of residences.

19
 In our view, the language in these cases — requiring consideration of ―all
of the relevant evidence‖ regarding ― ‗whether the parties‘ conduct evidences a
complete and final break in the marital relationship‘ ‖ (Umphrey, supra, 218
Cal.App.3d at p. 657, quoting Baragry, supra, 73 Cal.App.3d at p. 448), requiring
both a lack of ―present intention of resuming marital relations . . . [and] conduct
evidencing a complete and final break in the marital relationship‖ (von der Nuell,
supra, 23 Cal.App.4th at p. 736, italics omitted), and indicating that ―[a]ll factors
. . . are to be considered‖ in deciding the ―ultimate question‖ of ―whether either or
both of the parties perceived the rift in their relationship as final‖ (Hardin, supra,
38 Cal.App.4th at pp. 452, 453, italics omitted) — must be understood in the
context of their facts, which reflect that in each case the parties had moved into
separate places of residence. These cases do not address, and therefore are not
authority for a conclusion that ―living separate and apart‖ was intended by the
Legislature, originally or subsequently, to require, as wife argues, only
demonstrated conduct reflecting a subjective intent to part ways with no plan of
resuming the marital relationship, which might, but need not necessarily, include
physical separation. (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [― ‗It
is axiomatic that cases are not authority for propositions not considered.‘ ‖].)
They are consistent with a view that both separate residences and demonstrated
intent are necessary.
Moreover, as far as can be determined from the decisions, none of the cases
that have construed section 771(a) and its predecessors have traced the statutory
language back to the original, uncodified, 1870 Act. In our view, consideration of
the 1870 Act and its historical background helps to determine the Legislature‘s
intent in using the phrase ―living separate and apart.‖ It provides support for a
common meaning interpretation of the language, as well as context for what

20
followed. It is true that a number of cases have noted the lack of a specific
statutory definition and have expressed a view that there is a similar lack of
legislative history regarding how to determine the date of separation, i.e., the date
on which the parties began living separate and apart. (Manfer, supra, 144
Cal.App.4th at p. 929 [observing that ―the statute does not define ‗date of
separation‘ or specify a rule for determining it‖]; Norviel, supra, 102 Cal.App.4th
at p. 1158 [same]; Hardin, supra, 38 Cal.App.4th at pp. 450-451 [same]; Baragry,
supra, 73 Cal.App.3d at p. 448 [referring to ―what little law defines separation‖].)
But to the extent these comments suggest that there is a lack of discernable
legislative intent with respect to the underlying requirement of separate residences,
we disagree. When the 1870 Act is viewed as part of section 771(a)‘s statutory
history and in context, there emerges an apparent legislative intent and purpose
substantiating the ordinary linguistic understanding of the phrase ―living separate
and apart.‖
The issue of whether spouses must be residing in separate places in order to
support a finding that they are ―living separate and apart‖ under the statute was
finally expressly considered in Norviel, supra, 102 Cal.App.4th 1152. Citing
many of the cases that we have reviewed, the majority in Norviel recognized that
―[d]ecisional law . . . clearly establishes that parties may live apart and yet not be
separated.‖ (Id., at p. 1162.) It concluded, however, that the reverse is not also
true. The Norviel majority held that ―living apart physically is an indispensable
threshold requirement to separation, whether or not it is sufficient, by itself, to
establish separation.‖ (Ibid.) The court found support for that conclusion in the
statutory language, in the early decisions of this state, and in decisions from

21
several other jurisdictions. (Id., at pp. 1162-1163.)5 The Norviel majority
acknowledged that its ―conclusion [did] not necessarily rule out the possibility of
some spouses living apart physically while still occupying the same dwelling[,]‖
but found that ―this [was] not such a case.‖ (Id., at p. 1164.)
The dissent in Norviel found that substantial evidence supported the trial
court‘s finding of a date of separation that was prior to husband moving out of the
marital home because husband had clearly communicated his intent to end the
marriage and the parties‘ conduct thereafter was consistent with that intent.
(Norviel, supra, 102 Cal.App.4th at pp. 1165-1167 (dis. opn. of Bamattre-
Manoukian, J.).) According to the dissent, the majority‘s rule was unworkable,
largely because it did not allow a couple who has reached the decision to end their
marriage ―a transition period to take the necessary steps to untangle the financial,
legal and social ties incident to their decision.‖ (Id., at p. 1166.) Without
recognizing that the facts in Hardin, supra, 38 Cal.App.4th 448, reflected a
separation of residences, the dissent stated that it would apply the test articulated
by the Hardin court, which required consideration and evaluation of all of the

5 The Norviel majority noted In re Marriage of Johnson (1982) 134
Cal.App.3d 148, was the only case husband proffered as authority for his position
that parties may live together and still be considered separated. (Norviel, supra,
102 Cal.App.4th at p. 1162.) In Johnson, supra, at page 155, husband contested
the trial court‘s finding of the date of separation, but the reviewing court
concluded, in a single paragraph with little discussion, that the trial court‘s
determination was based upon substantial evidence. The Norviel majority was not
convinced that Johnson was contrary to the conclusion that it reached, given
Johnson‘s sparse recitation of the relevant facts. (Norviel, supra, at p. 1162.) We
agree. But to the extent that it can be argued that the Johnson court determined
that living separate lives was sufficient for purposes of former section 5118
(Johnson, supra, at p. 155), it is contrary to the evidence of legislative intent that
we have discussed.

22
evidence regarding ― ‗the parties‘ words and actions during the disputed time in
order to ascertain when during that period the rift in the parties‘ relationship was
final.‘ ‖ (Norviel, supra, 102 Cal.App.4th at p. 1168.)6
There appears to have been no reaction from the bench or bar subsequent to
the Norviel decision contending that the Norviel majority had introduced a sudden
new rule that was legislatively unintended and unworkable. No movement to
promote the position of the Norviel dissent seems to have materialized. And,
although we recognize that legislative inaction after a judicial decision does not
necessarily imply legislative approval (County of Los Angeles v. Workers’ Comp.
Appeals Bd. (1981) 30 Cal.3d 391, 404), it is also interesting to observe that the
Legislature has had more than a decade to amend section 771(a) in response to the
Norviel majority‘s recognition of a threshold requirement of physically separate
places of residence and has failed to do so.
From this survey of the history of section 771(a) and its predecessor
statutes, as judicially construed, we are convinced that the Legislature intended the
statutory phrase ―living separate and apart‖ to require both separate residences and
accompanying demonstrated intent to end the marital relationship. Consistent
with the statute‘s history and the developed standard articulated by the case law,
we hold that ―living separate and apart‖ refers to a situation in which spouses are
living in separate residences and at least one of them has the subjective intent to
end the marital relationship, which intent is objectively evidenced by words or

6 The Court of Appeal in the present case found the dissenting opinion in
Norviel to be compelling and wife reiterates the position here.

23
conduct reflecting that there is a complete and final break in the marriage
relationship.7

3. Public Policy Considerations
Wife contends that a bright-line rule, such as we articulate, will be overly
simplistic, will lead to unjust, harsh results, and is, essentially, against current
public policy considerations. She suggests that ―[a] typical spouse in California,
for example, may face further financial difficulties simply by being required to
move out of the marital residence as a prerequisite to establishing the date of
separation rather than intentionally and meaningfully living as roommates at the
same residence, while taking the necessary steps to untangle any outstanding
financial, legal and social ties incident to that spouse‘s decision to terminate the
marriage.‖ She points out that there may be spouses who need to reside in the
same residence as ―roommates‖ because of foreclosure, job loss, or other
economic factors. She suggests that others may wish to share the same residence
in order to coparent their children. Finally, she speculates concerning the
difficulty a spouse may encounter in obtaining a move-away order.
Wife‘s arguments are not without weight. However, it bears repeating that
the issue before us is a question of interpretation of a community property statute.
Our goal in construing statutory language is to give effect to the Legislature‘s
intent and purpose. (Ceja v. Rudolph & Sletten, Inc., supra, 56 Cal.4th at p. 1119.)
Here we find original legislative intent to use the language in its common and

7 Under the facts presented by this case, we have no occasion to consider,
and expressly reserve the question, whether there could be circumstances that
would support a finding that the spouses were ―living separate and apart,‖ i.e., that
they had established separate residences with the requisite objectively evidenced
intent, even though they continued to literally share one roof.

24
ordinary sense as requiring separate places of residence before the earnings and
accumulations of a wife during marriage could be characterized as the wife‘s
separate property. We understand the original legislative purpose of the statute to
be the protection of and provision for a wife who was estranged and living
physically separate from her husband. Thus, the statutory phrase ―living separate
and apart‖ required that the spouses be living in separate residences. We find no
evidence of any subsequent change in the legislative intent to apply the commonly
understood meaning of that language or change of legislative purpose in protecting
a vulnerable spouse, which alter the meaning of this statutory phrase. Admittedly,
the statute, as so construed, may work hardship in some specific situations, but we
cannot say it is absurd. (People v. Leiva (2013) 56 Cal.4th 498, 506 [a literal
construction may be rejected where it would result in absurd consequences the
Legislature could not have intended].) Very much to the contrary; a bright-line
rule, as husband points out, promotes fairness by providing a measure of
predictability to the parties and their attorneys, as well as clear guidance to judges.
It reduces the potential for manipulation of a more elastic standard by the higher
earner in situations of significant disparity of spousal income. It provides separate
property classification of earnings and accumulations where the need is greatest
because each spouse is maintaining his or her own separate place of residence. It
retains the presumption of community property for earnings and accumulations
acquired during marriage during a period of time likely to be prior to the
institution of court proceedings and any court order of support, thereby protecting
the lower earning spouse.
The requirement of separate residences for purposes of section 771(a)
promotes reasonable public policy interests, but if there are other policy concerns
that now advise the adoption of a different rule, it is up to the Legislature to craft

25
one. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1015; Cel-Tech
Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th
163, 174.)

C. Conclusion
We conclude that living in separate residences ―is an indispensable
threshold requirement‖ (Norviel, supra, 102 Cal.App.4th at p. 1162) for a finding
that spouses are ―living separate and apart‖ for purposes of section 771(a). This
interpretation of the statutory language aligns with the common understanding of
the words, the statutory history of the provision, and legitimate public policy
concerns. Because the Court of Appeal rejected such a requirement as a matter of
statutory construction, it erred as a matter of law.
III. DISPOSITION
The judgment of the Court of Appeal is reversed and the matter is
remanded for proceedings consistent with our opinion.
CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.

26
 CONCURRING OPINION BY LIU, J.

I agree with today‘s opinion that the phrase ―living separate and apart‖ in
Family Code section 771, subdivision (a) (hereafter section 771(a)) ―refers to a
situation in which spouses are living in separate residences and at least one of
them has the subjective intent to end the marital relationship, which intent is
objectively evidenced by words or conduct reflecting that there is a complete and
final break in the marriage relationship.‖ (Maj. opn., ante, at pp. 23–24.) I also
agree that it remains open ―whether there could be circumstances that would
support a finding that the spouses were ‗living separate and apart,‘ i.e., that they
had established separate residences with the requisite objectively evidenced intent,
even though they continued to literally share one roof.‖ (Id. at p. 24, fn. 7.) I
write separately to note that in addressing that question, courts should understand
the purpose of section 771(a) in light of relevant changes in historical context that
have occurred since 1870 when the Legislature enacted the original version of the
statute.
The phrase ―living separate and apart‖ first appeared in an uncodified 1870
statute titled ―An Act to protect the rights of married women in certain cases.‖
(Stats. 1870, ch. 161, p. 226 (hereafter the 1870 Act).) This statute provided that
―[t]he earnings and accumulations of the wife . . . , while the wife is living
separate and apart from her husband, shall be the separate property of the wife.‖
(Id., § 2, p. 226.) The 1870 Act further provided that a wife ―living separate and

1
apart from her husband‖ had ―sole and exclusive control [over] her separate
property,‖ could ―sue and be sued‖ without joinder of her husband, and could
―avail herself of and be subject to all legal process in all actions, including actions
concerning her real estate.‖ (Id., § 3, p. 226.)
Although the 1870 Act included no definition of ―living separate and
apart,‖ the Legislature clearly contemplated separate addresses for the husband
and wife. As the court explains, ―[s]ection 4 of the 1870 Act provided a procedure
for a wife who was ‗living separate and apart‘ from her husband to sell her real
property without joining with her husband. To do so, the wife was required to
record a verified and acknowledged declaration ‗containing a description of such
real estate, the name of her husband, her own place of residence, and [stating] that
she is a married woman, living separate and apart from her husband.‘ (1870 Act,
Stats. 1870, ch. 161, § 4, p. 226, italics added.) The statutory requirement that the
wife state in a declaration ‗her own‘ place of residence that is ‗separate and apart
from her husband‘ strongly suggests that the 1870 Act was directed at a situation
where the spouses had physically separated and the wife in fact had ‗her own‘
residence.‖ (Maj. opn., ante, at pp. 8–9.)
Today‘s opinion accurately describes the context and purpose of the 1870
Act. At the time, ―married women had very limited power over their property. In
the absence of a binding premarital agreement, the husband had the absolute right
of ‗management and control‘ of the community property of the marriage,
including the power of sale of assets,‖ as well as considerable power over the
wife‘s separate property. (Maj. opn., ante, at pp. 9–10.) ―Under the statutory
scheme in effect in 1870, until entry of a decree of dissolution of the marriage . . . ,
it appears that a woman who was either involved in divorce proceedings or whose
husband had deserted or otherwise left her, and who did not have separate property
coming within one of the statutory provisions giving her control over it, would

2
have no right of access to the financial sustenance needed to meet the expenses of
daily life on her own.‖ (Id. at p. 10.)
―When read as a whole and in this context, it seems evident that the 1870
Act 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. Under the authority of the 1870 Act, a wife whose husband was not
physically living with her could undertake to support herself in her ‗own‘
residence. Unlike other married women, she could retain her earnings and
accumulations as her separate property to maintain her separate residence. She
was given the right to control and dispose of her separate property. . . . [T]he 1870
Act should be understood as a limited exception to the general rule of that time
that the husband had full management and control over the marital and separate
assets for the duration of the marriage. It appears the Legislature was concerned
only with the special and limited circumstance of a wife who was living physically
separate from her husband. Such a wife was likely to be incurring separate
expenses associated with her separate residence and could be anticipated to need
the authority to separately maintain, control and manage such property. In such a
situation, the 1870 Legislature determined an exception to the normal community
property characterization of earnings and accumulations acquired during marriage
and husband‘s control was appropriate.‖ (Maj. opn., ante, at p. 11.)
The 1870 Act may be understood as a legislative response to cases like
Lawrence v. Spear (1861) 17 Cal. 421. There a wife deserted by her husband
engaged in a furniture business and sold furniture to the defendant. The husband
sued the defendant to void the sale on the ground that he never consented to it.
The court upheld the sale based on the legal fiction that the husband, having
abandoned the wife, impliedly consented to her disposition of property for her
own support. (Id. at pp. 423–424.) This fiction was necessary because the wife

3
had no control over community property and no way to accumulate or control her
own separate property, even though she was living separate and apart from her
husband. Moreover, divorce did not appear to be a widely accessible option. (See
Stevenson & Wolfers, Marriage and Divorce: Changes and their Driving Forces
(Spring 2007) 21 J. Econ. Persp. 27, 29, fig. 1 (Stevenson & Wolfers) [showing
very low rate of divorce in the United States between 1860 and 1900].) The 1870
Act provided a narrow exception to the male-dominated property regime in order
to protect a wife in such circumstances.
In 1971, the Legislature amended former Civil Code section 5118, the
immediate predecessor to section 771(a), to make the statute gender-neutral. The
amended statute said: ―The earnings and accumulations of a spouse . . . , while
living separate and apart from the other spouse, are the separate property of the
spouse.‖ (Stats. 1971, ch. 1700, pp. 3639–3640.) As the court notes, this
amendment remedied ―an inequity that had developed in the treatment of husbands
and wives,‖ whereby a wife living separate and apart from her husband could
accumulate separate property before formal dissolution of the marriage, yet the
husband could only accumulate separate property after obtaining an interlocutory
judgment of dissolution. (Maj. opn., ante, at p. 15.)
Beyond addressing this specific concern, however, it is evident from
context that the amended statute served a different purpose than the original 1870
Act. By 1971, the Legislature had long enacted reforms that gave married women
control of their own earnings even though such earnings remained community
property (Stats. 1951, ch. 1102, pp. 2860–2861), and by 1975, the Legislature had
abandoned the male-controlled community property regime in favor of giving both
spouses equal control (Stats. 1973, ch. 987, pp. 1897–1905; Stats. 1974, ch. 11,
pp. 3590–3591). (See Prager, The Persistence of Separate Property Concepts in
California‘s Community Property System, 1849–1975 (1976) 24 UCLA L.Rev. 1,

4
65–67, 73–74 & fn. 350.) Moreover, divorce had become more common by 1971
(Stevenson & Wolfers, supra, 21 J. Econ. Persp. at p. 29, fig. 1), and two years
earlier, California had become the first state in the nation to adopt a no-fault
divorce law (Family Law Act, 1969 Stat., ch. 1608, § 8). These reforms occurred
in the context of other legal developments promoting gender equality. (See Sail’er
Inn, Inc. v. Kirby (1971) 5 Cal.3d 1; Reed v. Reed (1971) 404 U.S. 71.)
Thus, by 1971, an estranged wife living separate and apart from her
husband had no need for a special statutory dispensation to earn and control
separate property in order to provide for her own sustenance. She already
controlled the portion of the community comprised of her own earnings, and she
was soon to have equal control of all community property. Thus, the gender-
neutral version of the statute enacted in 1971 no longer served the same protective
purpose of the gender-specific 1870 Act. The modern statute is best understood to
have a different purpose: Instead of addressing a nonexistent need to free one
spouse from the other‘s exclusive control of community property, the statute —
consistent with contemporary norms of gender equality — evenhandedly
recognizes the separateness of each spouse‘s earnings and accumulations in
situations where the spouses have effectively though not formally ended their
marriage. In short, the statute recognizes a separation before divorce that
effectively ends the community.
Today‘s opinion ascribes to the Legislature a continuing purpose of
―protecting a vulnerable spouse‖ in construing the phrase ―living separate and
apart‖ to have the same meaning today as it did in 1870. (Maj. opn., ante, at
p. 25.) But whereas a narrow construction of the phrase now ―protect[s] the lower
earning spouse‖ by ―reduc[ing] the potential for manipulation of a more elastic
standard by the higher earner‖ (ibid.), a narrow construction served no similar
protective purpose in 1870. To the contrary, the Legislature in 1870 understood

5
―living separate and apart‖ narrowly to mean separate addresses because it sought
to create ―a limited exception to the general rule of that time that the husband had
full management and control over the marital and separate assets for the duration
of the marriage.‖ (Id. at p. 11, italics added.) A broader understanding of ―living
separate and apart‖ — one that enabled an estranged wife to earn and control
separate property without living at a separate address from her husband — would
have been more protective of the vulnerable spouse in 1870. Yet it also would
have meant greater property rights for married women 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 1870 statute was
protective because it created an exception to the male-dominated property regime,
not because the exception it created was a narrow one.
By 1971, the Legislature had revised the archaic laws granting husbands
exclusive control of marital assets, and the original motivation for construing
―living separate and apart‖ narrowly had become obsolete. Now the gender-
neutral statute, premised on the legal equality of husband and wife, simply
recognizes the separateness of each spouse‘s earnings and accumulations at the
point when the spouses have effectively but not formally ended the marriage, i.e.,
when the spouses are ―living separate and apart.‖ Construing this phrase as it
appears in the modern statute, I agree that its most natural meaning (maj. opn.,
ante, at pp. 6–7) as well as practical considerations of clarity and
administrability (id. at p. 25) suggest that whether spouses are ―living separate and
apart‖ turns not solely on the subjective intent of at least one spouse, but also on
an objective manifestation of that intent by some form of physical separation.
However, countervailing considerations of family economics and parenting (id. at
p. 24) suggest that the physical separation need not assume the precise form that
the Legislature in 1870 envisioned, namely, separate addresses.

6
 In considering whether spouses living under the same roof are ―living
separate and apart‖ for purposes of section 771(a), we are not bound by the 1870
Legislature‘s narrow understanding of that term. Rather, in light of the current
purpose of section 771(a), the question is whether the spouses, in addition to their
intent to separate, have demonstrated ―unambiguous, objectively ascertainable
conduct amounting to a physical separation under the same roof.‖ (In re Marriage
of Norviel (2002) 102 Cal.App.4th 1152, 1164.) In order to qualify as ―living
separate and apart,‖ the spouses must have a living arrangement that clearly and
objectively signals a complete and final termination of the marital relationship.
Neither the Legislature nor this court has foreclosed the possibility that such a
living arrangement may occur within a single dwelling.

LIU, J.
I CONCUR:
WERDEGAR, J.

7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Marriage of Davis
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 220 Cal.App.4th 1109
Rehearing Granted

__________________________________________________________________________________

Opinion No. S215050
Date Filed: July 20, 2015
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Elizabeth Hendrickson, Commissioner

__________________________________________________________________________________

Counsel:

Law Office of Stephanie J. Finelli and Stephanie J. Finelli for Appellant.

Ferguson Case Orr Paterson, Wendy C. Lascher; Ivie, McNeill & Wyatt and Lilia E. Duchrow for
Respondent.

1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephanie J. Finelli
Law Office of Stephanie J. Finelli
3110 S Street
Sacramento, CA 95816
(916) 443-2144

Lilia E. Duchrow
Ivie, McNeill & Wyatt
444 South Flower Street, Suite 1800
Los Angeles, CA 90071
(213) 489-0028

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