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"Can I apply for divorce if I live with my spouse in the same residence?"

Before filing for divorce in Australia, it's necessary for a couple to have been living separately for no less than 12 months consecutively. In this context, the term “living separately” includes living separately under one roof (for example, in the same home).


What is "Separation Under One Roof"?

Separation Under One Roof - Family Law Australia
Separation Under One Roof - Family Law Australia

Couples contemplating divorce might ask themselves, "Is it possible for us to reside together under the same roof following our separation?" or "What consequences might arise from continuing to live together after our separation?" or “Can I apply for divorce if I have been living with my spouse in the same residence/home?” They may also wonder if it's even a viable option to remain under the same roof once the decision to separate has been made!

Yes. It is possible to live under the same roof after separation and yet successfully apply for a divorce order. However, there is more that you need to know about “separation under one roof”.

In the realm of family law in Australia, the concept of "separation under one roof" refers to a situation where a couple decides to end their relationship and live separately but still reside in the same residence due to financial or logistical constraints. This arrangement can have significant implications, especially when it comes to the legal aspects of separation and divorce under the Family Law Act 1975.


Proving Separation Under One Roof

Proving separation under one roof can be challenging but not impossible. Courts recognise that each situation is unique, and they consider various factors to determine whether a couple has genuinely separated despite living in the same dwelling. Some key factors that can help establish separation under one roof include:

  1. Communication: Evidence showing that the couple communicates minimally, only about essential matters such as children or finances, can support the claim of separation.

  2. Physical Separation: While still residing in the same home, physical arrangements like sleeping in separate rooms or using separate living areas can demonstrate a level of separation.

  3. Financial Independence: Demonstrating financial independence, such as separate bank accounts, bills, and expenses, can strengthen the case for separation.

  4. Social and Domestic Arrangements: Evidence of separate social lives, meal arrangements, and domestic responsibilities can indicate a separation of lives despite sharing a residence.

  5. Intent to Separate: Expressions of intent to separate, either verbally or in writing, can serve as crucial evidence.

  6. Third-Party Evidence: Evidence (such as an affidavit) given by a friend, relative, or neighbour supporting your claims of living separately under one roof.

  7. Legal Advice: Seeking legal advice and documenting the intention to separate legally can be instrumental in proving separation under one roof.


Important Incidental Concepts

Several incidental concepts are vital for individuals considering separation under one roof:

  1. Date of Separation: Determining the official date of separation is crucial as it marks the beginning of the separation period for legal purposes. Remember that applicants for divorce must establish 12 months of separation before the court can make a divorce order. Further, a court will not be able to make a Divorce order if it is satisfied that there is a reasonable likelihood of cohabitation resumed.

  2. Impact on Property Settlement: Separation under one roof can impact property settlement negotiations, as it may influence how assets and liabilities are divided between the parties.

  3. Parenting Arrangements: Clarifying parenting arrangements, including custody and visitation rights, becomes essential even while living together to ensure the well-being of children during the separation process.

  4. Emotional and Psychological Impact: Living under the same roof while separated can have emotional and psychological implications for both parties and any children involved, requiring careful consideration and support.


Pitfalls and Considerations

Despite its potential benefits, separation under one roof can present various pitfalls and considerations, including:

  1. Ambiguity: The ambiguity of living arrangements can lead to disputes over the actual date of separation, potentially prolonging legal proceedings and, thus, resulting in increased legal costs.

  2. Conflict and Tension: Continuing to live together post-separation can exacerbate conflict and tension, affecting the emotional well-being of all parties involved.

  3. Influence on Legal Proceedings: Courts may scrutinise separation under one roof arrangements more closely, necessitating robust evidence to support the claim of separation.

  4. Legal Advice: Seeking legal advice early in the process is crucial to understanding rights, obligations, and potential outcomes, helping individuals navigate the complexities of separation under one roof effectively.


In conclusion, while separation under one roof can offer practical solutions in certain circumstances, it's essential for individuals to carefully consider the legal, emotional, and practical implications involved. Seeking professional legal advice and support can facilitate a smoother transition and help ensure the best possible outcome for all parties involved.




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