Separation Under the Same Roof

In Australia, there is a ‘no fault’ system for divorce. This means that the court is not concerned with, and does not consider, any of the reasons as to why the marriage came to an end.

The only requirements for a divorce are:

• That you have been separated for at least 12 months;
• That the marriage has broken down ‘irretrievably’; and
• That the other party has been served with your Application for Divorce and accompanying court documents.

In some cases, parties separate and continue to reside under the same roof for all or some of the 12-month period before they apply for a divorce. This could be for a number of reasons such as financial constraints or accommodating the needs of the children of the marriage and so on. Some parties remain separated under the same roof for a few days, months or even years.

Parties that have remained separated under the same roof can still apply for a divorce, however they will need to provide further information to satisfy the court that they have in fact been separated during this period. Examples of such information include:

• Details as to sleeping arrangements (i.e. separate bedrooms).
• Whether the intimate relationship has ended.
• Changes in domestic tasks (i.e. each attending to their own cooking and cleaning duties).
• Reduction in outings as a family or attendance at shared activities.
• Advising family and friends of the separation.
• Maintaining separate finances (i.e. separate bank accounts, each paying for their own groceries).
• Whether any relevant government body has been informed of the separation (i.e. Centrelink, Services Australia, the Child Support Agency).

Parties are required to advise the court of the additional information by filing an Affidavit and should also explain why they have not yet separated their households.

If the parties are able to provide sufficient information to satisfy the court that they were in fact separated whilst remaining under the same roof, then it is likely that a divorce will still be granted.

It is important to remember that a divorce will only formally end a marriage, and is separate to a financial settlement and formalising arrangements for the care of children.

For more information, see case references and DSA resources.

If you have been separated and wish to file an Application for Divorce, you can reach out to the Family Law Team at DSA Law on (03) 8595 9580.