Separated Under the Same Roof

Separation under one roof

It is becoming increasingly common these days for couples to end their relationship yet remain living under the one roof.

There are many reasons why separated couples might continue living in the same house:  for some it might be a conscious choice to maintain stability for the children of the relationship; for others it might be out of financial necessity. Whatever the reason, for those that find this position tenable, living under the same roof with your ex can certainly have its advantages!

When does living together become an issue?

In addition to causing complications if one party decides to claim single parent government benefits or child support, living under the same roof as your former partner will add additional complexities if one party decides they want to file for a divorce.

Why are my living circumstances relevant?

The Family Law Act 1975 (Cth) states that to be eligible to apply for a divorce parties must first be able to satisfy the court that they have separated and lived separately and apart for a continuous period of not less than 12 months.

Now this does not necessarily mean that if you have remained living in the family home with your former partner that you have not been separated. The Family Law Act goes on to recognise this by saying:

“The 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”.

So how do I prove that we have actually been separated?

In order to satisfy the court that you and your former partner have been separated for the requisite 12-month period, upon filing your Application for Divorce, you will also need to file an Affidavit that provides information in support of your application.

This will include details such as:

  • When you last shared a bed and when intimacy ceased;
  • When you ceased having joint finances and proof of this;
  • Evidence that you were open about your marital status with friends, family and government departments such as Centrelink (if correspondence has been received from any of these departments you should annex this to your affidavit; and
  • Any other information that details how you led separate lives although living under the one roof.

You will also need to provide an explanation as to why you remained living under the one roof and, if you are presently still doing so, what intentions you have moving forward.

If there are children of the relationship under the age of 18 you will also be required to satisfy the court that adequate provisions have been made for the children.

Ensuring that you have the right information in your affidavit is critical to avoid having your application dismissed. If you and your former partner have been separated under one roof and you are contemplating making an Application for Divorce call and speak to one of our family law specialists today to see how we can help.

tony
tony@adelaidefamilylawyers.com.au