How to Prove Separation While Still Living Together

Before applying for a divorce, it is a legally necessary requirement that a couple are separated for at least 12 months. However, separation does not necessarily mean that living under the same roof is impossible. Being ‘separated under one roof’, as it is referred to, is possible if certain criteria are met.

If separated in this way it is important to obtain legal advice. To prove legal separation, it will be necessary to provide the Court with particular information and evidence. This information needs to be set out in a statement called an affidavit and filed with the Court along with the divorce application.

If this situation applies to you, Szabo & Associates Solicitors can help you demonstrate to the Court the legitimacy of your separation and with your divorce application.

Why do people separate but remain together under the same roof?

There are good reasons why a couple has to remain in the same property, at least in the short term. As well as the most frequently quoted reasons, the uncertainties of the Covid-19 pandemic and lockdowns have added to an extra dimension: 

• Financial necessity - The couple’s joint finances may already be stretched, particularly if there are children involved. To sell the family home in the short term may not be practical. For one or both partners to find alternative accommodation, taking on the extra costs that this will entail may be unrealistic.
• Retaining a stable home environment for children - Moving out of the family home could be particularly difficult for both parents and children. Many couples will try and ‘de-escalate’ the situation for the sake of their children.
• Convenience - The family home is likely to be convenient to work and schools.

How is ‘separated under one roof’ assessed?

A separated couple living under the same roof will need to prove to the Court that they have lived independently and are not acting like a couple anymore. The affidavit submitted with a divorce application must demonstrate how the relationship has changed. The Social Security Act sets out five factors to consider whether separation has taken place, which should be covered therein:

• Financial arrangements 

What changes in the financial relationship have taken place? Examples include closing down joint accounts, opening separate bank accounts, and taking responsibility for paying bills. It can include changes to beneficiaries for superannuation, insurance, Wills or other legal arrangements.  

• The nature of the household

Evidence will be expected about separate bedrooms or sleeping arrangements, not cooking meals for one another or how household chores are divided.  

• Social aspects of the relationship

Evidence is required as to when family and friends were notified of the relationship breakdown and were no longer being invited to or attending functions together. There is an expectation of a reduction or absence of shared activities such as family outings and not spending time together on special occasions such as birthdays or holidays.

• The presence or absence of a sexual relationship

The presence of a relationship may support the conclusion that the spouses remain a couple. Absence, however, does not necessarily prove the relationship has irretrievably broken down. 

• The nature of commitment 

This is concerned with the extent that the parties retain their commitments to each other, and the efforts the parties have made to distance themselves from each other. 

As well as these factors, the Court will consider the relationship holistically, taking into account all relevant information and circumstances. This will also include:

• Future intentions

The Court will want to know what the intentions for the future are. Have there been discussions about the future? For example, do the couple intend to keep living together, or are they looking for a new place to live? The affidavit should give some details of these types of conversations.

If the Court thinks there is a chance of reconciliation, it will not grant a divorce.

The importance of recording the date of separation

It is important to note the date, especially in these circumstances. The Court will usually view the date of separation as the date one of the parties considers that the relationship is over and communicates or demonstrates it to their partner and others, such as when government departments were advised of the separation if receiving benefits. The date can impact the division of assets during a property settlement and can be a matter of dispute between the parties.

What does it mean for couples still living together while separated?

Separation is defined as when there is evidence that the marriage, or de facto relationship, has broken down and the parties are living apart. This means one or both parties having the intention to end and not resume the relationship and to act upon that intention.

If a couple has lived together under the same roof, despite being separated in the 12 months before applying for a divorce, it will be necessary to prepare affidavits outlining a distinct change in the marriage, showing that the couple has separated. These sworn statements must address the changes to the factors specified, why the parties remained living in the same property, their future intentions regarding living arrangements, including those of any children. If intending to continue at the same address, the divorce may not be granted if it is thought there is a reasonable chance that the relationship will resume. The necessary government agencies need to have been advised of the separation. Both parties can be interviewed and asked to provide additional information about their living arrangements.

If one party is making the application a corroborating affidavit will probably be required from a competent third party to attest to the separate arrangements notwithstanding the ‘shared roof’ of the couple.

Contact our Separation and Family Lawyers in Sydney, NSW

Please contact the expert family lawyers at Szabo & Associates Solicitors for expert advice on your separation, divorce or family law matter. Call us on 02 9281 5088 or fill in the online contact form.