Divorce – Can you be separated and still be living under the same roof?
The Family Law Act 1975 (Cth) requires that in order to be granted a divorce by the Federal Circuit Court of Australia parties must be separated for a minimum continuous period of 12 months.
separation for divorce purposes
Can parties remain living under the same roof and still meet the separation requirement for the purposes of divorce?
Yes – section 49 of the Family Law Act 1975 (Cth) provides that parties can certainly remain living under the same roof and still be considered as separated.
Although relevant, physical separation is not the sole factor considered by the court when determining whether the parties are separated for the purposes of divorce. The rationale for this is that it is accepted that there are cases where parties remain living together following separation for numerous reasons including financial, practicality and care of children.
Proving that parties are in fact separated whilst living under the same roof.
Should you and your former spouse be residing under the same roof whilst separated you will need to provide additional affidavit evidence to the court to prove that you are in fact separated. It is important that this affidavit is correctly drafted and provides the specific evidence required to satisfy the court that you meet the separation requirements or your application for divorce may be rejected.
Factors, among others, that the court will consider when determining the issue of separation include whether you and your former spouse engaged in independent daily routines post-separation, whether you and your former spouse had separate finances post-separation, whether you and your former spouse made note publicly of the separation and whether you and your former spouse's sleeping arrangements changed post-separation.