What happens with our divorce if we live together after separation?
It is not uncommon for couples who have separated to continue to live together for some time. This may be for various reasons, such as financial constraints, work commitments or caring for children or family members.
In Australia, the only reason you need to apply for a divorce is that the marriage has broken down irrevocably (Section 48(1) of the Family Law Act 1975). To prove that the marriage has broken down irrevocably, you must have been separated from your former spouse for at least 12 months. Generally, the separation date is the date one party moves out of the matrimonial home. However, if the parties are still living together or lived together after separation this may not be the case.
Separation under the one roof
You can still apply for a divorce if you and your former spouse separate but continue to live together. This is known as ‘separated under the one roof’. This means that, while you are sharing a residence with your former spouse, you are not living together as a couple.
Section 19 (2) of the Family Law Act 1975 states that parties may be considered separated if they “lived separately and apart” notwithstanding that they continued to live under the one roof or that either party has rendered some household services to the other. For example, if you are still doing things like cooking or cleaning for your former spouse, you may still be considered a separated couple.
To prove that you and your former spouse have been separated for over 12 months despite living together, you must: -
Provide evidence of your separation, such as showing you and your former spouse have separate finances.
Giving evidence in an affidavit regarding your separation. For example, you may give evidence that you are no longer engaged in a sexual relationship with your former spouse, and that your family and friends recognise that you are now separated.
File an affidavit from a third-party who can confirm the separation. You will need to carefully consider who may be an appropriate third-party to confirm the separation. That person should be able to give evidence that they were aware you and your former spouse were separated and how they formed that belief.
Reconciliation during separation
If you and your former spouse reconciled during the 12-month period in the lead up to filing the divorce, you must also demonstrate that the reconciliation was for less than three months.
Other divorce requirements
As is the case for all divorces, you also need to meet the other requirements to apply for a divorce in Australia such as: -
providing a copy of the marriage certificate;
confirming you have no intention of reconciliation; and
confirming that least one party is an Australian citizen or lives in Australia and regards Australia as their permanent home, or ordinarily lives in Australia and has done so for at least 12 months before you file the divorce application.
You must serve your spouse with a copy of the Divorce Application and all other documents file in support of your application. For more information about how to serve your spouse see our blog post here.
It important you ensure you have sufficient evidence to support your application. We recommend that you obtain advice from one of our solicitors to help you prepare your matter before you file your divorce application with the Court.
Please note: the information in this article is general in nature and is not legal advice. For legal advice about your circumstances, contact us to make an appointment with one of our solicitors.
