In recent times, an increasing number of Australian couples have found themselves in a unique situation known as “living separated under one roof.”
This term refers to couples who have decided to separate but continue residing in the same household due to various reasons such as financial constraints or co-parenting responsibilities.
While this arrangement might seem unconventional, it’s essential to understand how family law in Australia handles such situations and the implications it may have for the parties involved.
Defining Living Separated Under One Roof
“Living separated under one roof” occurs when a couple has formally decided to end their relationship, but for practical reasons, they continue to share the same residence.
Common reasons for choosing this arrangement include maintaining stability for the children, affordability concerns, or the inability to find alternative living arrangements immediately.
The Australian Family Law Perspective
In Australia, the Family Law Act 1975 governs family matters and the dissolution of relationships, including de facto and married couples.
When it comes to “living separated under one roof,” the law recognises that separation doesn’t always necessitate living in separate residences.
The key factor in determining separation is the intention of the parties to end their relationship.
To establish separation under one roof, the couple must demonstrate:
1. Communication of Intent: Both parties should communicate their intention to separate to each other, family, and friends. This may involve notifying others about their decision and ensuring they are no longer presenting themselves as a couple in public.
2. Physical Separation of Lifestyle: While living under one roof, the couple should display a significant change in their lifestyle and dynamics, showing that they are not functioning as a couple anymore. This may include dividing household chores, financial arrangements, and sleeping arrangements.
3. No Resumption of Relationship: A critical element is that both parties have no intention of reconciling the relationship or resuming it as a couple.
Is it possible to get a divorce while still living together?
Yes, it is possible to get a divorce while still living together. In Australia, to apply for a divorce, the Family Law Act 1975 requires the following:
• Separation: The couple must have been separated for at least 12 months before filing for divorce. This separation requirement doesn’t necessarily mean living in separate households. As mentioned earlier, “living separated under one roof” is recognised as a valid form of separation, as long as there is a clear intention to end the relationship, and other separation criteria are met.
• Irretrievable Breakdown: The marriage must have irretrievably broken down, meaning there is no reasonable likelihood of reconciliation.
• Legal Requirements: Either you or your spouse must be an Australian citizen, have been living in Australia for at least 12 months before filing, or consider Australia your permanent home.
When applying for divorce in Australia, you will need to provide evidence that you and your spouse have been living separately and apart for at least 12 months.
This evidence can include affidavits from yourself, your spouse, and other witnesses who can confirm your separation.
Living separated under one roof might require additional evidence to show that you are indeed leading separate lives despite sharing the same residence.
This could include financial records, communication logs, and other documentation that demonstrates the changed nature of the relationship.
It’s essential to consult with a divorce lawyer to ensure you meet the legal requirements for divorce and properly document your separation, especially if you are living separately under one roof.
Additionally, obtaining legal advice can help you navigate other related issues, such as property settlement, parenting arrangements, and financial support.
Example of Case, Separated under One Roof
Elizabeth, a person in a complex situation, approached our law firm. She and her estranged husband, Peter, were still living together under one roof despite their decision to end their marriage.
Elizabeth sought our help and we held an initial consultation with Elizabeth to understand her situation and goals.
We explained to Elizabeth that living separated under one roof is recognised as a valid form of separation in Australian family law. We informed her about the requirements to establish their separation.
To support the divorce application, we helped Elizabeth gather evidence of their separation, such as separate finances, living arrangements, and changes in their relationship dynamics. We also prepared affidavits from Elizabeth and a supporting witness.
With the necessary evidence in hand, we assisted Elizabeth in preparing and filing the divorce application with the Family Court of Australia. We ensured that all required documents were accurate and complete.
Once the court was satisfied with the evidence and the required waiting period had passed, we helped Elizabeth obtain the divorce certificate, officially ending her marriage to Peter.
Our law firm enabled Elizabeth to successfully file for divorce while still living under one roof with Peter, allowing her to move forward with confidence and clarity.
Seek Legal Advice
Living separated under one roof is an unconventional but increasingly common situation for couples in Australia facing separation.
It is crucial to understand that, from a legal standpoint, the intention to end the relationship and the changes in lifestyle are more critical than physical living arrangements.
Seeking legal advice early on can help navigate the complexities of family law, ensuring that the rights and interests of both parties and any children involved are protected during this unique phase of their lives.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.