Parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other”. (s49(2) Family Law Act 1975 (Cth))

You and your partner had an argument, heated words were exchanged, the children were crying and the thought of leaving crossed your mind. Living in the same room is just too difficult. Maybe you want some time to cool off or maybe you want to separate.

Did you know that you do not have to leave the house; you can be separated but still live under the same roof.

What does it mean to be separated under the same roof?

It essentially means a married couple, despite living in the same house, they no longer live in the same room and no longer act as a couple. It is important to communicate in clear words to your partner that you have separated and make a note of the date of separation.

The date of separation is important because you need to show the court you have been separated for at least 12 months before filing an Application for Divorce. (s48 FLA) It is also important when you are going through a property settlement to determine each parties’ contributions to the asset pool pre and post separation.

Proving Separation Under the same roof

If you have been separated under the one roof, you are required to file an additional affidavit in support of your Application for Divorce. In that affidavit you must explain to the court what your relationship was like before separation and how it has changed after the separation.

The court will consider the following factors:

  • Moving out of the bedroom and sleeping in separate rooms
  • Separate Bank Accounts – closing joint bank accounts and credit card accounts
  • No sexual relationship or intimacy
  • Making your separation known to your family and friends by telling them that even though you live in the same house you have separated
  • Attending social gatherings separately, so that you are no longer appearing in public as a happily married couple
  • Cancelling family vacations
  • Not cooking for each other or doing household chores for one another

Please note that the above is not an exhaustive list, the court may ask you to provide additional evidence if they are not satisfied.

In addition to the above, you must also explain the following in your affidavit,:

  • The reasons why you and your partner continue to live in the same house?
  • What living arrangements have you made for any children under the age of 18?
  • What are your plans for the future?

If you want to continue living together, even after your divorce the Court may not grant you the divorce.

Attending Court

This is a question asked by almost every client going to see a lawyer. ‘Do I need to attend court?’

In divorce matters, if you have filed a sole application for divorce and there are children under the age of 18, you have to attend a court hearing.

In all other circumstances e.g., filing a joint application or filing a joint application and there are children under the age of 18, you are not required to attend a hearing given that you have clearly set out the circumstances of your separation in the affidavit and filed it with the Court. However, if the court is not satisfied with the information that you provide, they may ask for additional evidence to support your Application for Divorce. Or in some circumstances they may ask you to attend a Court Hearing.

At Cominos Family Lawyers we have over 10 years experience dealing with matters involving separation under the one roof. We will get it right the first time and we take the stress off your hands.

If you are unsure of your current situation or in need of some legal advice, please give us a call on (02) 8999 1800 or send us an online enquiry to book a free 15-minute discovery call with one of our lawyers.