Photo Courtesy: Gregorie Bertaud collected from Unsplash
In Australia, you can have a divorce on a no-fault basis. However, Australian law needs you to be separated from your ex-partner for 12 months before you can make an application for divorce. While you need to be separated as a pre-requisite for divorce, you are still allowed to live under one roof. In this article, I am trying to explain how you can be separated for divorce while still living in the same house.
1. What is separation under one roof?
Separation is a very stressful time for everyone involved. When a couple separates, in an ideal situation they make arrangements to live separately. However, living in separate houses is not essential for a couple to be separated for divorce.
If a separating couple continues to live under one roof for some reason, even after their separation, the court will look into other factors to determine the status of their relationship.
In such a situation, the court might look into the following behaviour of the couple while determining the validity of their separation:
Whether the couple have separated their finances;
Whether the separating couple has changed their sleeping arrangements;
Whether the couple has separated their household duties;
Whether the separating couple has stopped sharing meals or family activities and socializing together;
Whether the separating couple has informed their friends and family about their separated status.
To determine the nature of the relationship of a separating couple, the court considers the situation of each case.
2. What are the reasons that people separate under one roof?
It is common knowledge that it could be extremely stressful for the separating couples to share the house when they are not together anymore. However, some situations compel the separating couples to live under the same roof, even after the separation. Following are some of such reasons:
Finance- It is often become impossible for separating couples to afford two houses. The property settlement could take a long time. The pending settlement could affect the finances of both parties. A lot of separated couples with young kids were forced to share the same house after separation as they could not afford a safe place for the kids outside the family home.
Stability for kids- When there are young kids involved, it is often very difficult for the separating parents to provide them with stability and security taking them away from their home. Especially the kids with special needs could have a very hard time settling in a new place. Parents often decide to share the same house after separation so that the kids can have normalcy in their lives.
Convenience- Some of the separating couples choose to live under the same roof because of the convenience. The matrimonial home might be closer to work or school. They choose to wait until alternative arrangements could be made without causing too much disruption.
3. How do you prove at court that you were separated under one roof for divorce?
To get a divorce in Australia, the only thing you need to prove is that you and your ex-partner had lived separately for 12 months before making the application for divorce. If you have been living under the same roof, you will need to provide the court with an affidavit stating that although you shared the same house, the relationship between you and your ex-partner had been changed and you are separated. This affidavit should accompany the divorce application. The affidavit should explain to the court the reasons for your being separated under one roof.
Your affidavit explaining the separation under one roof should show evidence of the breakdown of your relationship. It should also explain that why it is unlikely that your relationship may resume again. The affidavit should contain the following:
Change in financial arrangements between you and your ex-partner. It could be closing down the joint bank accounts, opening separate bank accounts, separating responsibilities to pay for your bills and mortgages;
Change in household arrangements and responsibilities. For example- providing evidence that you have separate sleeping arrangements, you no longer share the meals or cook or clean for each other, you pay your bills or share of the mortgage;
Change in social interaction as a separated couple. For example, providing evidence that you do not attend social events as a couple anymore, you have told your family and friends that you are separated, you are not treated as a couple in social settings;
You do not have any sexual relationship anymore;
If you receive government benefits, you have notified the departments like Centrelink, ATO or the Child Support Agency about your separated status.
Your affidavit should also explain:
Why do you continue to live in the same home following separation and what intention, if any, you have of changing the situation;
What living arrangements you have made for any minor children or adult children with any special need while you were living under one roof;
Which government departments you have advised of your separation if you receive a government benefit. If you have received any correspondence from these departments about your separation, attach a copy to your affidavit.
You can also file affidavits from your family members or friends about the status of your relationship. They can tell the court why they believe you are separated from your ex-partner while living under the same roof.
4. Do you have to attend court?
You do not have to attend the court if you are making a joint divorce petition with an affidavit setting out the circumstances of your separation under one roof. If the court needs more information, it will give you direction to file an additional affidavit with such information.
However, if you are making a sole application for divorce and you have at least one minor child of the marriage, you need to attend the court hearing.
Separation under one roof does not prevent you from initiating any parenting arrangements or property settlement. You can apply for those as soon as you are separated from your ex-partner. However, you need to wait for 12 months before you can apply for divorce.
If you need more information about separation or divorce or if you want to find a Family law specialist, please contact us at www.lawcircuit.com.au or call us at 0418631798 or email us at bonhi@lawcircuit.com.au. We will help you to make your legal journey stress-free.
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