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We have separated but live in the same house. Can we still get a divorce?

We have separated but live in the same house. Can we still get a divorce?

An updated version of this blog can be found here

To apply for a divorce you must meet one of the following jurisdictional requirements:

  1. You regard Australia as your home and intend to live in Australia indefinitely; and/or
  2. You are an Australia citizen; and/or
  3. You ordinarily live in Australia and have done so for 12 months immediately prior to filing your divorce application.

The court must also be satisfied of the following:

  1. That you and your spouse have been separated for at least 12 months; and
  2. That your marriage has broken down irretrievably and there is no likelihood of that you will get back together.

It is therefore completely possible to be granted a divorce if you have been separated from your spouse for a period of 12 months but still live under the same roof.

What is separation under one roof?

It is often common for a husband and wife to separate but continue to live together under the same roof.

Often this is for a short period of time, however it is also not uncommon for spouses to remain living together in the same home for months or sometimes even years following separation.

If you and your spouse have continued to live together in the same home for part of, or all of the required 12 month separation period, then you will be required to provide the court with additional information when filing your application for divorce.

You will need to provide two affidavits; one of your own and one by another person who will likely be a family member or friend. The affidavits should provide details of your separation. You need to provide relevant information which goes towards establishing that you and your spouse have in fact separated while still living under the same roof.

The details in the affidavits should include information like:

  • any change in sleeping arrangements;
  • the division of finances - for example introduction of separate bank accounts and the use of separate funds to pay for each spouses own household expenses;
  • any change to the performance of household duties for each other. For example, each spouse cooking dinner separately, attending to washing of dishes and clothes separately;
  • any reduction in outings as a family. This can include details about attendance at social events;
  • current arrangements for the care of any children and any ongoing future arrangements;
  • details regarding any notification that you have made to family and friends of your separation;
  • details regarding any government departments (for example Centrelink) that have been advised of your separation;
  • information about why you have remained living in the same home and your intention moving forward.

There is no set list of factors that must be satisfied in order to prove to the court that you have separated under the same roof. It will however be difficult to persuade a court that you have separated with your spouse if there has not been a significant change to the living arrangements and your perception to family and friends remains as if you are still a couple.

Will I still need to do affidavits if both my former partner and I apply for a divorce jointly?

Even if two parties prepare a joint application for divorce, you are still required to provide the court with additional information if you have been living together in the same home for part of, or the entire 12 month period of separation. This additional information is required to be presented to the court in affidavit form.

In this situation, both spouses are able to prepare separate affidavits and therefore there would be no need to prepare an affidavit of an independent party (family member or friend).

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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