Separated But Living Under One Roof
When a marriage or de facto relationship ends, one party typically leaves the shared residence. This change in living arrangements usually marks the beginning of the legal period of “separation” of the parties. However, there are instances when the parties continue to live together for financial or practical reasons even though the relationship has come to an end. Under the Family Law Act 1975, the concept of separated but living under one roof addresses situations when couples have separated but continue to live in the same household. This arrangement may raise questions over the validity of the separation when it comes to making a divorce application and may have further implications for parenting arrangements and property division.
Separation
One of the few prerequisites to obtaining a divorce in Australia is that the couple has been separated for at least 12 months with no reasonable prospect of reconciliation. Separation occurs when a couple stops living together in a domestic relationship, which usually means that the couple stops living together in the same home. However, a person can apply for a divorce if this separation occurred while living under one roof, provided that there is evidence that the relationship between the pair is genuinely over.
Date of separation
For parties to be actually separated under one roof, they must both be aware that the relationship has irretrievably broken down. This means that if only one person wants to end the relationship, they do need to communicate this decision to their partner. It is important to know that the partner does not have to agree that the relationship has ended, they only need to know the decision of the other person. The exact date of the separation should be noted, as there are time limitations that start from this day. This date will have implications for when either party can file a divorce application and the deadline for making a property settlement application through the court.
Evidence
When a former couple lives separated under one roof, they need to provide additional information to the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia) with their application for divorce. The applicant should attach an affidavit with their application, outlining proof of their separation, such as a:
• change in sleeping arrangements;
• reduction in socialising together;
• decline in performing household duties for each other, such as laundry and cooking;
• separation of financial resources; and/or
• notification to government departments and family and friends of the breakdown of the relationship.
The applicant must swear or affirm the validity of the affidavit before someone who is authorised to witness affidavits (such as a lawyer). When former spouses jointly apply for divorce, they file separate affidavits setting out proof of their claim of living separated under one roof. Anyone applying for a divorce as a sole applicant should file an affidavit and ask another person such as a friend, neighbour, or family member to write an affidavit containing as much information as they know about the separation.
Finances
It is usually advisable to immediately split up financial arrangements when separating from a partner, and this is especially the case when living separated under one roof. This usually means dividing bills and utilities, severing joint bank accounts, and updating beneficiaries in respective wills, and superannuation and insurance policies. It is best to speak to an experienced family lawyer on how to separate finances, as this can impact future family law proceedings.
Government notification
Anyone receiving government benefits may find that their payments change while they are living separated under one roof. The rates vary whether a person is single or a member of a couple, so it is best to consult Centrelink to explain the change in living circumstances. For Centrelink purposes, the definition of when a couple is separated includes whether they:
• provide financial support to one another;
• claim each other as partners on taxation;
• name the other party as a beneficiary for insurance and testamentary purposes;
• jointly own major assets;
• share a bank account;
• share a bedroom;
• currently or previously had a sexual relationship;
• share household chores and common living areas;
• are ongoing and exclusive;
• have shared commitment to each other; and
• are socially accepted as a couple.
Other factors to consider
When a couple live separated under one roof, they should take steps to maintain their privacy, such as changing passwords on their devices and keeping all correspondence from their solicitor in a safe place. If there are children involved, the separated parents should spend suitable time alone with each child, and refrain from disparaging the other parent in front of the child, as this can lead to accusations of parental alienation.
A separated couple needs to understand the nuances of this legal principle as it can significantly impact their rights and obligations under Australian law. For any legal assistance or further advice on this matter, please get in touch on 1300 636 846.