While it is a requirement to be separated for a period of 12 months prior to being able to make an application for a divorce, it is not a requirement for you and your partner to live apart after you’ve decided to separate.
Separation is a difficult time for both parties. However, for a variety of reasons, couples will sometimes remain living together, even if just for a short period of time following the breakdown of their relationship.
This is known as being ‘separated under one roof’.
Why do people separate under one roof?
Separation is a difficult time for both parties. However, there are several reasons why separated couples continue to live together in the short term, including (but certainly not limited to):
- Financial reasons – If you’ve already budgeted your household income and now need to work out your personal income following the split, it can be difficult to budget initially. For this reason, many separated couples continue living together because they cannot afford to pay rent or a mortgage on their own.
- Stability for children – If there are children from the marriage, moving out of the former matrimonial home might be particularly difficult for both parents and children alike. For this reason, many separated couples continue to live together in order to provide some stability for the children in the short term. In practical terms for the parents, this can also assist them in reaching a resolution about their future parenting responsibilities and make decisions about where the children will live and how much time they will spend with each parent, as they can discuss these arrangements together before physically moving out of the former matrimonial home.
- Convenience – Many of us choose our family home because it’s close to work or school. For this reason, it’s often easier and more convenient for couples to live together for a period until similarly convenient arrangements can be made.
How does Australian law define ‘separated under one roof’?
If you no longer live with your former partner, then separation is easy to define. For the vast majority of couples, the separation date often coincides with the date upon which they ceased to live in the same property.
However, when there are circumstances in which couples have remained living together for reasons of convenience or otherwise following the breakdown of their relationship, the court will look to other factors to determine or verify whether separation has occurred. For example, the Court may look at:
- Whether the parties have separated their finances
- Whether there has been a change to the parties’ sleeping arrangements;
- Whether there has been a change to or decline in performing household duties for one another and/or attending shared activities/family outings together;
- Whether friends and family have been informed about the separation and when that took place.
It is not necessary for all of the above to be satisfied, nor is the above list exhaustive. There are other matters which may satisfy the Court that separation has occurred, which will be assess on a case by case basis.
Can you live separately but married under one roof?
Australia first introduced no-fault divorce back in the 1970s. However, there are still some restrictions around divorce proceedings. For example, in order to divorce, you and your partner must have been separated for a full calendar year. However, crucially, you do not have to live separately during this period.
This means that if you continue to live in your family home for part or all of the year-long separation period, you can still apply for a divorce. However, you’ll have to provide the court with proof that you were separated during this period. The evidence you can supply can involve:
- The fact you slept in separate bedrooms
- You didn’t cook or clean for each other
- You didn’t attend social functions together
- You told your family, friends and other relevant parties about your separation
- You didn’t provide financial support to each other
- You did not have a sexual relationship
No matter what evidence you wish to supply to the court, you’ll be asked to provide a sworn Affidavit. However, we’ll provide more information about this later.
How do we prove that we’re separated under one roof?
If you and your partner continue living together for all or part of the 12-month separation period, you will need to provide the court with an Affidavit (along with your Application for Divorce) that deposes to a change in the marriage, whether gradual or sudden, and that speaks to the fact that while you are still living together, you and your spouse have in fact, separated.
You may also need to file an Affidavit of a third party (or parties) to provide evidence of your separation as well.
Your Affidavit should explain why you continued to live together following separation and, as above, should also try to cover the following factors to show that while a physical separation has not occurred, there has been a breakdown in the relationship and no reasonable likelihood that the relationship will resume:
- Any changes to the financial aspects of the relationship following separation – For example, closing down joint accounts, opening of separate bank accounts, changing the responsibility for payment of liabilities and/or entering into Consent Orders or a Financial Agreement;
- Any changes to the nature of the household – For example, giving evidence that you no longer share a bedroom, cook meals for one another or complete household chores for one another;
- Any changes to the social aspects of the relationship – For example, giving evidence as to when family and friends were notified of the relationship breakdown or giving evidence to show you are no longer treated as a couple socially (e.g. you are no longer invited to social events together that you were invited to as a couple or would have been invited to as a couple during your relationship);
- The absence of a sexual relationship;
- Any changes to the nature of your commitment to one another – For example, whether there has been a withdrawal of intimacy, companionship and support to the other party; and/or
- What government departments you have advised of your separation if you receive a government benefit (e.g. Centrelink, the ATO, the Child Support Agency).
