Good morning everyone
Can you Divorce While Living Under the Same Roof?
I am regularly asked this question and Under the Family Law Act 1975 married couples who are separated but live in the same home are eligible for a divorce.
I regularly assist clients who wish to apply for divorce but continue to live in the same home as their spouse. This situation is known as “separation under the one roof” and is recognised under Australian law, but it requires additional evidence to satisfy the Court that the relationship has genuinely ended.
The Court must be satisfied that:
a. Your marriage has broken down irretrievably; and
b. You have been separated for at least 12 months.
Separation is more than physical distance. It involves a breakdown of the marital relationship, and providing to the Court evidence that:
a. there is no intimate relationship between the parties;
b. that the parities live independently within the home; and
c. that the parties are independent of each other and seen as such, without having any mutual obligations of a shared life.
As each situation is different the Court will look at each set of individual circumstances to assess the separation. When couples are separated under the same roof the Court requires the parties must provide a detailed affidavit explaining their separation. If you are applying on your own, an independent affidavit from a third party (such as a friend or family member) who can confirm your separation must also be filed.
It is necessary for each party to an application for divorce, when they are separated under the same roof, to file an affidavit setting out the details of the separation as follows:
a When and how the separation occurred including who communicated the separation and when it was clearly communicated;
b. the current living arrangements and the independence of household duties;
c. the separation of finances and the changes to any joint accounts or financial contributions;
d. your independent social life and the public aspect of your separation;
e. your independence of domestic services such as cooking and laundry or the reasons why some services may be shared;
f. evidence where appropriate to any government agencies; and
g. if there are children under 18 years, of the relationship the impact and arrangements that are in place for their care.
Applications involving separation under one roof are more closely examined by the Court. This can result in delays or refusal where affidavits do not have the required detail, or where financial or domestic arrangements are not properly explained. In some cases, the Court may require attendance to give further evidence.
We can assist you by providing you with the advice whether your circumstances meet the legal threshold for separation and assist in the preparation of clear, comprehensive affidavit/s that meets the evidence threshold required. We are able to assist you to ensure that your application for divorce will be granted.
If you or someone you know is considering an application for divorce, whether living under the same roof or not, please contact me to arrange an appointment to discuss your application.
Wishing you a wonderful day,
Jeffrey Choy
JCL Legal
0419 233 670
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Legal Disclaimer: This guide is for informational purposes only and does not constitute legal advice.