Family Law Blog

Separation Under One Roof – What is It and How Does it Work?

Separation under one roof is a concept that allows parties to finalise a divorce even though they have completed some of the necessary separation period while still living in the same place. This article will discuss how separation under one roof works and why it’s an important concept to have in place for divorcing parties.

Requirements for Divorce and the Premise of Separation Under One Roof

To finalise a divorce in Australia, parties need to show to the Court that they have been separated for the minimum required period (12 months) and that there is no reasonable chance they will get back together.

Usually, of course, the separation period involves you and your ex living in different accommodations.

However, more and more, we see the price of housing increasing, rental markets increasingly tightening, and relocation becoming significantly more challenging. As a result, sometimes parties going through a separation period simply can’t move out into different abodes.

The problem is that it’s a bit harder to tell the Court you’ve been “separated” in the usual sense of the word when you and your spouse have still been living together. And the Court won’t finalise a divorce unless it is persuaded that you’ve been separated for 12 months.

This is where the “separation under one roof” concept comes into play.

Some Examples of When Separation Under One Roof Applies and Does Not Apply

So the principle issue here is one of timing.

If you’ve been separated for 2 years, but spend the first 6 months still living together you don’t need to worry about separation under one roof issues. This is because you have still had 12 months living apart since you separated.

If you’ve been separated for 3 years, but lived together for the first 2.5 years, then you’ll need to address the extra evidence we’re about to discuss.

How Do You Prove you’ve been Separated Under One Roof?

There are a few main categories that you will need to deal with. This is evidence you will need to give to the Court in the form of an affidavit (a document you swear to the truth of).

You’ll need to address:

  1. When and how the separation started;
  2. Why a party did not or could not move out at the time of separation;
  3. What practically changed in terms of your relationship once you separated;
  4. What you are intending after a divorce is finalised.

Let’s take a look at each of these in turn.

When and how your Separation Began

Often pinpointing a date the separation commenced can be difficult, but it’s important for obvious reasons – the Court needs to know when the 12 month period began.

This may be fresh in your mind, or you might need to go back a bit to refresh your memory about any specifics.

Was there a particular message exchange with your ex, followed by a discussion when you agreed the relationship was over? Was there an incident or a string of incidents leading up to it that would provide context? When/if you did speak about it specifically, who said what? Was there agreement the relationship was over or did one of you not want to agree that was the case for a while?

The relevant date might be self-evident. But if not, it’s important not just to set out the end of the relationship but to provide the context which may allow the Court to agree that it is more likely than not the relationship was over as at a particular date.

Why Didn’t Somebody Move Out?

There are many reasons a separating party might not move out even though your relationship was over.

The most obvious is finances – perhaps between the two of you, it simply wasn’t feasible for either/both to be paying for 2 sets of accommodation at the same time.

Perhaps you had a child with special needs who required regular care that couldn’t be provided by only one parent.

Perhaps the area in which you were living was very hard to find accommodation in, and despite best efforts, a suitable place to live simply hadn’t been located yet.

Whatever the case, set out the details of why somebody didn’t move out at the time the separation commenced. Similarly to the separation date, if there was context or discussion it is helpful to set out the details of that.

Practical Changes in your Relationship

It’s going to be difficult to convince a Court that you had separated if everything continued exactly the same as it had before.

Most likely, that isn’t the case anyway.

So to demonstrate the reality of what you are asking the Court to accept, you will need to put on evidence about how your relationship with your ex actually changed.

That might include, for example:

  1. The end of a sexual relationship together;
  2. One of you moving into a different room or putting personal effects into storage;
  3. The separation of your finances;
  4. The end of going to functions or social events together;
  5. The announcement of your separation on social media;
  6. Any steps you have already taken as part of the separation process itself in terms of property, child arrangements and the like;
  7. What you did or didn’t say to family and friends;
  8. Whether you notified government agencies (as needed) such as Centrelink, Child Support or the Australian Taxation Office.

The options here are fairly endless, and each case of separation under one roof is going to be different from the next.

Spend some time considering the “before and after” and speak with your divorce lawyer who can help ask questions that might prompt recollections or changes that didn’t necessarily spring to mind.

Your Intentions for the Future

If you have been, and are still, living together the Court may have a question mark about whether you intend to continue living together.

That, after all, might be interpreted as a possibility that your relationship is not irretrievably broken down, and there is a prospect of reconciliation.

But that’s not necessarily the case.

Setting out your intentions for the future in terms of your ongoing relationship is therefore an important part of demonstrating to the Court the reality of your separation and how it is going to work once the divorce is finalised.

Do you Need a Lawyer for Separation Under One Roof?

A good family lawyer is going to help you prepare the necessary paperwork in a way that minimises potential issues when you are seeking divorce with a period of separation under one roof.

That becomes particularly important if you and your ex don’t necessarily agree on all the relevant facts and background, as that can lead to complications.

Of course you will also benefit from legal advice as part of the overall separation process, including managing your property settlement process and child custody issues.

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