Proving separation whilst living together

In Australia, couples need to be separated for 12 months before registering for an official divorce, meaning to apply for a divorce in the Court. Whilst separation usually comes in the form of living apart, this is not always a financially realistic option. We’ve delved into the process of proving separation whilst living together and discussed some of the reasons separated couples may find it beneficial to remain under one roof.

Reasons for remaining within the same household following separation

Separation is a challenging experience at the best of times. When you then consider the uncertain economic climate and a family’s individual financial situation, the prospect of one or both parties moving out of the family home might be a less-than-ideal, or even impossible, option.

In this instance, you and your ex-partner may both decide it beneficial to separate whilst remaining under the same roof. Especially when you consider the additional costs associated with moving home; hiring removalists, paying the new home deposit or required bond amount, and purchasing new home furniture and electronics.

Another reason to remain in your shared home may be the wellbeing and happiness of your children. Whilst there are many tools and resources available to help both parents and children adapt to life after separation, it can be beneficial, in individual cases, that a child’s routine receives minimal disruption in the initial stages of separation. Living across two households can be of particular disruption and, as such, you may decide it best to remain in the same household as your ex-partner whilst you understand the next best step forward for all parties involved, provided of course it is safe to do so.

It is important that both you and your ex-partner are on the same page about the reasons for remaining within the same household, as this reasoning will be considered by the Courts in deciding whether you have adequately satisfied the requirements of the mandatory separation period.

Proving separation despite remaining under one roof

There are a number of ways that ex-partners can prove separation, despite still living together:

  1. Separate financials – this can extend to, for example, parties having separate bank accounts. It could also include efforts to remove each other as beneficiaries of any superannuation or life insurance. If you receive government payments (eg. Centrelink), the Court may need to be informed about any Government departments you have advised about the separation and any correspondence received from such departments about the separation
  2. Separate sleeping arrangements – this can be evidenced through a change in sleeping arrangements, such as a party moving into a separate room
  3. Social proof of separation – there can be evidence that your friends, family and other third parties (such as your child’s school) are aware of the separation. This may include having informed your family and friends, verbally or via written communication, of your separation, or requesting from the school that both parents receive notifications individually
  4. Decline in performing household duties for each other – this could include a party no longer cooking meals or washing clothes for the other spouse, or other household duties being performed during the marriage are no longer performed (or performed less) after separation

A party should also inform the Court why the parties continued to live in the same home and any intent of changing the situation, including living arrangements for any child of the marriage under the same roof. 

If you are unable to satisfactorily prove separation to the Court, your divorce application may proceed to a hearing, which can be a substantial additional expense.

Utilising a legal professional

Whether you are considering separation, are currently living separate but under the same roof as your ex-partner, or have undergone the 12 month separation period and are ready to file for divorce, we can assist you in understanding what evidence you will need to collate and how best to approach any application.

Equipped with this understanding, you can potentially eliminate the financial burden of one or both parties removing themselves from the family home without jeopardising a smooth and timely divorce process, if this is what both parties wish to achieve.

Keep in mind though that divorce proceedings do not finalise any parenting or property/financial matters arising from the breakdown of a marriage. Also, upon a divorce order taking effect, the parties then have 12 months to file in the Court for property settlement and/or spousal maintenance unless the Court grants leave to proceed out of time.  Independent legal advice should be sought regarding these matters to ensure your interests are protected before applying for a divorce.

For specific, personalised advice, contact Shannon Daykin of Daykin Family Law for a consultation.

We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.