Introduction
With the current economic climate, it is becoming more common that people remain in the same home after they have separated. But what does this mean for your divorce application, and how will the Court be satisfied that you have indeed separated?
This article is a timely reminder of being separated under the same roof, what factors the Court will look out for, and the additional requirements to satisfy in the divorce application.
Separation
The most important part of the divorce application is that the parties have been separated and living separately for at least 12 months prior to the date of filing. This requirement is found in section 48(1) of the Family Law Act 1975 (Cth) (‘the Family Law Act’).
Separation is more than physical, case law in Todd and Todd (No 2) (1976) tells us that separation is the breakdown of the marital relationship and can only occur when one or both parties form the intention to sever and not resume the marital relationship and act on that intention, or act as if the relationship has been severed. For a separation to occur, one or both parties will need to communicate their intention to separate but will also need to act upon that intention.
Separate Under The Same Roof
What happens when there is a separation, but neither person moves out of the home?
Section 49(2) of the Family Law Act recognizes that parties can be separated and living separately for the purpose of the divorce whilst under the same roof.
When continuing to live under the same roof, the Court must be satisfied as to why parties continued living under the one roof, and that there has been a change in the relationship, either sudden or gradual, that demonstrates a separation (In the marriage of Pavey (1976)).
To satisfy the Court, you will need to file an affidavit showing that you and your ex-partner have been living separately under the same roof. It is also useful to have an affidavit from another adult who is aware of the circumstances to corroborate. The affidavit will need to examine and contrast the relationship before and after separation to demonstrate that there has been a change proving separation (Todd and Todd (No 2) (1976); In the marriage of Pavey (1976)).
Changes to the relationship which prove you are living separately under the same roof may include moving into a separate bedroom, no longer attending social functions together, no longer having a sexual relationship, no longer performing household tasks for each other, or informing your friends and family of the separation.
However, separation will always be a question of fact and will depend on each case. As the Court has previously recognized that parties have been separated despite casual acts of sexual intercourse, an agreement to resume cohabitation that is not carried out, or rendering some household services to each other.
If you have separated and been living under the one roof for at least 12 months, or not sure whether your circumstances are sufficient to demonstrate a separation, get in touch with our team today to discuss your circumstances and get your divorce application started.
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Disclaimer
The content provided is general information and is not intended to be relied upon for legal advice.