If a married couple has separated and wishes to file for divorce, the Court must be satisfied that under section 48 of the Family Law Act 1975:
The marriage has broken down irretrievably and there is no chance of reconciliation,
The parties have separated for at least 12 months, and
If there are children of the marriage, proper arrangement for their care and welfare is in place, or
If there are children of the marriage and proper arrangement for their care and welfare is not in place, but the Court is satisfied that it is proper to proceed with the Divorce.
Although there is a requirement that parties need to be separated for a period of 12 months before filing for divorce, there is no requirement for parties to live apart after they have decided to separate. Separation under one roof is when a couple separate but continue to live in the same house following separation, even if it is for a short period of time.
It is not uncommon that parties may decide to live together after separation due to convenience, financial benefits or to provide stability for their children. A couple may be deemed to have separated when they cease living together as acouple. If “separation under one roof” applies to you, you may need to support your divorce application by providing an affidavit demonstrating a change in your marriage.
How to prove separation under one roof:
Your affidavit will need to illustrate there has been a change in the marriage, showing you and your spouse have separated. You will also need to explain why you and your spouse continued living together following the breakdown of your marriage. The Court will consider whether you and your spouse still acted like a husband and wife in order to determine whether a separation has occurred.
The Social Security Act 1991 sets out a range of factors that must be considered when determining a person is a member of a couple relationship or separated under one roof. Relevant details you should include in your affidavit to prove you are separated include:
Changes to financial aspects of the relationship
Opening separate bank accounts
Closing joint bank accounts
Changes to beneficiaries for superannuation, life insurance, wills or any other legal arrangement
Re-negotiation of shared loans
Changes to the nature of the household
If you are sharing living spaces such bedrooms, bathrooms and other living areas
Changes in sleeping arrangements
Changes to household duties
Changes to childcare arrangements
Whether you have started independently shopping for groceries, cooking, cleaning etc.
Changes to shared telephone numbers or email addresses
Changes to social aspects of the relationship
Evidence that you have announced the separation to family and friends
Whether you are invited to events separately or as a couple
Reduction or absence of shared activities or family outings
Not spending time together on special occasions such as birthdays or holidays
Whether any of the parties have formed a sexual/romantic relationship with another person
If any religious or cultural considerations are relevant in concealing the separation to other people
Any previous or current AVOs restraining contact between the parties
The presence of a sexual relationship
The absence or cessation of a sexual relationship or intimacy (however, this is not a conclusive sign of a separation as separated couples may still engage in a sexual relationship). The sex may be a part of the marriage but sexual relationship in itself is not the evidence that the married couple continued their relationship.
The nature of the parties’ commitment
The Court will consider the parties level of commitment to each other and their relationship by looking at the following factors:
If the parties have any joint plans for the future
Changes to intimacy and companionship
How often the parties communicate and share information with each other
If the parties would provide assistance if the other was in a crisis or ill (especially if it is a long-term serious illness where ongoing care would be required)
If either party intends to divorce the other party
Parties will also need to inform the Court of any government agencies that have been advised of the separation (e.g. Centrelink).
Overall, the Court will look at the “whole picture” of the relationship, rather than specifically focusing on the five factors as mentioned above. All relevant information regarding a person’s separation and circumstances will be taken into consideration.
A separated couple under one roof will need to prove to the Court that although they live under the same roof, they live and act independently and do not act like a married couple anymore. The divorce process can be lengthy and complex, which is why it is important to prepare for what you can do before consulting with a lawyer.
If you have a family law matter, contact one of our experienced family law solicitors on (02) 9920 1787 to discuss how we may assist you to achieve a favourable outcome. Pannu Lawyers extensively practice in Family Law and regularly appear at Courts throughout New South Wales such as Federal Circuit Court Parramatta, Family Court of Australia Parramatta, Federal Circuit Court Sydney, and Family Court of Australia Sydney.
The above information is intended as general information and is not to be relied on as legal advice.
