Separated Under One Roof: What It Means for Your Divorce Application

There are many reasons why a couple may remain living together following separation. In today’s climate, securing alternative accommodation is not always financially possible straight away. When children are involved, parents may also choose to gradually adjust living arrangements to minimise disruption.

What Does “Separated Under One Roof” Actually Mean?

Separation under one roof is when the parties to a marriage separate but continue to live in the same home. This may be for a few days, weeks, months or years following separation.

Why It Matters for Your Divorce Application

Under Section 48 of the Family Law Act 1975 (Cth), parties applying for a divorce must have been separated for a period of no less than 12 months immediately preceding the date of filing the application.

If you and your spouse have lived in the same home during part or all of that 12-month period, the Court will require you to provide extra information to satisfy that the parties have genuinely separated.

• If you are filing a sole application – the Court will require an affidavit from you and an independent third party.
• If you are filing a joint application – the Court will require an affidavit from each of you.

How Do You Prove You Were Separated While Living Together?

Your affidavit must demonstrate evidence of separation under one roof. The Court is looking for signs that despite living under the same, the marriage has broken down, and the parties are no longer living together as a couple. Examples may include:

• Separate sleeping arrangements
• Separate bank accounts and expenses
• Separate household responsibilities and maintenance
• No longer attending social events as a couple
• No longer sharing meals
• Evidence that friends, family or government agencies (such as Medicare or Centrelink) have been informed of the separation

The more examples you can provide, the stronger the affidavit.

The Role of an Independent Third Party

An independent third party, such as a friend, family member or neighbor must provide an affidavit setting out what thy personally know about the separation.  Examples may include:

• When they were informed of the separation
• Whether they were told why both parties continued living together
• Whether they see both parties at social events and how they present
• Any other observations that support the fact that the parties are separated

Practical Steps

If you are separated under one roof, or anticipate that you might be, there are some practical steps you can take:

1. Note your separation date
2. Start establishing separate routines – such as separate sleeping arrangements and bank accounts
3. Inform people you trust
4. Keep records of any documents that reference the separation

Separation under one roof is a recognised circumstance in Australia and with the right guidance, the process of applying for divorce can be straightforward. To discuss your particular situation or to receive advice regarding your divorce application, please contact our family law team on 09 9614 7111 or melbourne@nevettford.com.au