What’s Required to Be Separated Under The Same Roof?

By 10 January 2019Family Law

It happens all the time. You and your spouse have had a row. Heated words are still being exchanged as one of you heads for the nearest exit. “If you leave,” one of you shouts, “don’t bother coming back!” “Don’t worry,” the other retorts. “I won’t!”

Perhaps tempers cool quickly in the aftermath and your separation is short-lived. Or perhaps it takes a few weeks to reach a truce. Or maybe, after a brief reconciliation, you’ve both realised that this latest quarrel was the last straw; the marriage simply can’t be salvaged. And now you’ve got to make some difficult decisions about your living arrangements during separation. Will one of you find somewhere else to live, or will you opt for separation under one roof?

Here’s what you should know about the latter course of action.

Why go through separation under one roof?

If you choose to remain in the same house with your spouse during separation, you’re not alone. Recent data reveals that more than 38,000 people were registered with Centrelink as separated under the same roof in 2017.

There are many reasons why estranged couples remain in the same house during this difficult time. Some of the most common are:

  • Cost – Some people find paying rent and/or mortgage payments for two households is cost-prohibitive;
  • For the kids’ sake – some couples stay under one roof because they don’t want to disrupt the kids’ lives while other arrangements are made;
  • Lack of trust – people may remain living together to safeguard their belongings until a property settlement is reached;
  • Comfort – it isn’t easy or inexpensive to establish a second home, especially when the existing residence offers close proximity to schools, workplaces, hobbies and family, so some couples may find it is easier to share the existing home while separating.

Legal implications of separation under one roof

One of the legal complications that may surface if you remain in the same house while you are separating is a dispute over the actual date of separation. From a legal standpoint, determining this date is very important because you cannot apply for divorce (if you are married) until you have been separated for at least one year (12 months). If you are in a de-facto relationship any application for a division of property under the Family Law Act, must be made within 2 years from the date of separation, unless the court grants leave to apply outside this time.

Depending on your specific situation, the date of separation may also be important within the context of property settlement matters. This is usually the case when one or both of you have acquired or sold property or assets immediately prior to separation. Due to the legal complexities in these circumstances, it is crucial that you get proper advice as soon as possible.

Advice should also be sought in relation to any Centrelink benefits you may be entitled to claim.

In some cases, child support can be assessed to be paid even though parties are living under the one roof.

Proving separation while living under one roof

In most cases, all you need to do to prove separation is show that you have made your spouse aware of your intent to separate and taken appropriate action, such as:

  • Moving out of the bedroom you’ve been sharing;
  • making your circumstances known to family and friends;
  • engaging in relevant activities on your own.

Keeping track of the changes you’ve made and providing documentation will help convince the Court that the two of you were no longer in a viable relationship even though you remained under the same roof during separation.

However, to prove that you were truly ‘separated’ for the 12-month period prior to divorce, you must also provide an affidavit to the Court.  This is a sworn, written statement made by one or both of you, or someone outside of the relationship who can attest to the changes in your relationship. You will only need a neutral third party who is aware of your circumstances to file this document if you are the sole applicant for divorce. If you are making a joint application, each of you should file an affidavit. But don’t forget it must be witnessed by a lawyer or Justice of the Peace to be valid.

To make a finding, the Court will weigh collective information about the following:

  • any steps taken to establish individual finances, such as the closure of joint bank and credit card accounts;
  • changes in division of household responsibilities such as cleaning, shopping and so forth;
  • changes in social activities, such as seeing certain friends separately or ceasing to see them altogether;
  • changes in holiday arrangements, such as the cancellation of ‘family’ vacations;
  • changes in public perception regarding the status of the relationship;
  • significant changes in emotional dynamics, specifically whether the two of you still support each other in difficult times;
  • changes in intimacy, such as the cessation of sexual relations;
  • changes in living arrangements within the home.

Remember, these are just general guidelines. Every situation is different, and the Court may require evidence about additional aspects of your case, or it may not request certain information at all.

Don’t be afraid to ask for help

It is understandable if you feel isolated or alone when faced with separation or divorce, but we are here to help. Contact us to learn more about the legal requirements of separation under the same roof and related issues today.