You can be separated while living under one roof when there is a breakdown of the relationship. This can occur if the parties have separate bedrooms, don’t share meals or domestic duties, and have communicated the intention to end the relationship. It is important to seek legal advice to understand your rights and obligations.
Have you heard the saying, ‘separation under one roof?’ It means that someone is living as a single person, but they live in the same place as their former spouse or de facto partner even though separated from them. There are thousands of people in Australia who are in this situation. The break up of a relationship is generally complicated, and there can be considerable emotional strain over finances and legal issues. These issues can be exacerbated when the people involved remain living in the same dwelling.
Due to the increasing prevalence of separated couples living under one roof, arrangements are made under the 1975 Family Law Act that addresses this issue. Section 49 of this act indicates that parties who have separated can be recognised as single whilst residing in the same residence. You can only file for divorce once you have separated for 12 months, and if you have only been married for two years, you may be required to undertake marriage counselling before you can file.
Why Separated Couples May Choose To Live Together
There can be several contributing factors that lead to separated couples agreeing to live in the same dwelling. Their living arrangements, where they live together may be necessary because:
Finances – It can be challenging to support two homes financially.
Delays in court settlement. These delays mean finances cannot be settled.
They may consider it a better option for the children.
What Does Separated Mean Under The Law?
It is possible to say the marriage or relationship is over but that you choose to continue to live under one roof for various reasons. The court has to be convinced that the separation has occurred to establish the relationship or consortium vitae has broken down. Consortium vitae means partnership for life. Several factors make up the consortium vitae, including sexual relations, enjoying each other’s company, living under the one roof, and recognising that they are seen as a couple in public and privately and protection and support. The family court holds ‘the shelter’ in high regard as protection and a place where children can be bought into the world and reared, a place to entertain friends and relax.
Showing Separation Under One Roof
There are ways to show that you are separated from your spouse or partner even though you share a dwelling. A divorce application is based on the grounds a marriage is irretrievably broken. The irretrievable nature of the marriage is often shown through the parties living separately for 12 months or more.
If someone is seeking a divorce in Australia, they can do so by filling out documents online provided on the Family Court website. Parties separated but living under one roof need to establish the date of separation and additional evidence.
Two affidavits are needed, one from the person who is starting divorce proceedings and a supporting affidavit from a third party. If the parting couple makes the application jointly, both people should file an affidavit. The same is needed where those involved require a financial split of property and assets that they collected during their relationship.
In documentary evidence for the courts, including the following:
- Separation date.
- Provide evidence that the decision to separate was communicated with the other party. These details could be a written document that is dated, stating the separation has occurred.
- Reasons why the parties are still sharing a dwelling though they are separated.
The following areas also need to be considered and information prepared for the court:
Operation of the Household
Present Accommodation arrangements clearly, plus indicate what is organised for once the divorce is settled.
How sleeping arrangements have changed regarding the use of separate bedrooms since separation.
How the communal space is used differently. What has changed?
Changes in how you now split the domestic needs between parties. That you don’t eat together, cook together etc.
How are the common living areas utilised together or separately? Indicate how the communal space is used differently. What has changed?
Financial arrangements refer to the separation of finances. An example of this is that joint bank accounts may have been closed. The economic area can include:
If you are giving financial support to each other or still have jointly owned assets. Shared assets will not indicate separation.
Are claims being made that you are partners on your taxation or insurance?
Have changes been made to wills, beneficiaries for superannuation and life insurance?
Do you still own significant assets jointly?
How are bills paid? Do you both take responsibility for your bills?
Do the parties have the same devices, email addresses, telephone numbers etc.?
It would help if you showed that each person has responsibility for their own financial needs.
The court will examine the following with regards to commitment.
Do you still retain a sexual relationship, or has it ceased?
Is the sexual relationship exclusive and ongoing?
Do you still have a mutual and strong commitment to maintaining the relationship?
Can you show there is evidence of a lack of emotional support?
Social Aspects Of Relationship
Do the couple have let family and friends know that they have separated and this could be demonstrated by not spending special occasions together.
Do they want to be seen as a couple in the community?
Do they still participate in social and leisure activities together?
If children are involved, show schools are notified, and reports, etc., are now sent out to each party.
You may also be able to provide evidence from a doctor, counsellor or social worker.
Seeking Legal Support
From the above you can see, being separated but living under one roof can become complex; it may be beneficial to seek legal advice when separating. A lawyer can provide you with support and information that will make the process simpler. They can inform and assist with child support, government payments and what is required to make the necessary changes in all aspects of divorce proceedings. When separated but living under one roof, there are many complexities in filing for separation with which a lawyer can assist.
There are several things couples who wish to separate and make an application for divorce but live under one roof can show they have separated. To illustrate, this includes dividing assets, ensuring you have separate bank accounts, and proving that they live very independent lives under the same roof. You will need to present an affidavit that shows there has been a change in the marriage and that you have separated. In the affidavit address things like sleeping arrangement changes, changed shared activities, division of finances etc. Also, address why you continue to live under the same roof despite the relationship breaking down.
Frequently Asked Questions
1. How long do you have to be separated before you can file for divorce?
Answer: You must have been living separately, even if living under one roof, for at least 12 months before you can apply for divorce.
2. Will government payments change when we separate?
Answer: If you are getting a payment from Centrelink, then it is likely that your payment will change. You must let Centrelink know if you separate and are living under one roof. The rates are dependent on if you are a single person or a couple.
3. What is an affidavit?
Answer: An affidavit is required in many situations. It is a prepared written statement that provides evidence to the court. The party or witness who presents the evidence in the affidavit must swear that the testimony is true before an authorised witness. An official witness might be a Justice of the Peace.
4. Do I have to go to court?
Answer: If a child under 18 years old is involved in the separation, you will be required to attend court. In other cases, as long as you have filed the necessary paperwork, you will not have to participate in a court hearing.ç