Legal advice: Separated but living under the same roof?
Separated but living under the same roof: You should seek legal advice before applying for a divorce. MATTHEWS LAWYERS are experienced family law practitioners. Call 0401269091 for legal advice.
This fact sheet is for spouses (applying for a divorce) who lived in the same home during part or all of the required 12 month separation period. It explains what you need to do and the documents you need to file with the Court.
What is separation under the one roof?
Separation under one roof is when a husband and wife separate but continue to live in the same home. It may be for a few days, weeks, months or years following separation.
If you and your spouse lived in the same home during part or all of the required 12 months separation period, you need to provide extra information to the Court. You need this information before you can apply for a divorce.
- Separated for 14 months
- Lived in the same home for 5 months after separation
- Three of the 12 months separation lived in same home
Must provide extra information to the Court
- Separated for 5 years
- Lived in the same home for 3 years after separation
- Past 2 years lived in different homes
Do not need to provide extra information to the Court
Separated but living under the same roof: What documents do I need to file?
If separation under one roof applies to your situation, you need to support your divorce application with an affidavit.
What is an affidavit?
An affidavit is a written statement prepared by a party or witness. It is the main way you present evidence (facts of the case) to the Court. You must swear or affirm the affidavit.
What do I need to prove?
In your affidavit, you need to prove that there has been a change in the marriage, gradual or sudden, showing you and your spouse have separated. You will need to explain any:
- change in sleeping arrangements
- reduction in shared activities or family outings
- decline in performing household duties for each other
- division of finances; for example, separate bank accounts, and
- any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation.
Your affidavit should also explain:
- Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation.
- Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof.
- What government departments you have advised of your separation if you receive a government benefit; for example, Centrelink or the Department of Human Services (Child Support). If correspondence has been received from these departments about your separation, attach a copy to your affidavit.
Do I have to attend court?
If you have made a sole application and there is a child of the marriage under 18 years you must attend the court hearing. In all other instances, provided you set out the circumstances of your separation and file the required affidavits with the Court, you do not need to attend the court hearing. If the Court requires more information, it will adjourn the case and direct you to file additional material or to attend the court hearing.