Do you think it is possible in getting Divorced in Australia while living under the same roof?
Divorce can be a complex and emotionally challenging process, even more so when a couple decides to separate but continues living under the same roof.
In Australia, the law recognises that some couples may need to remain living in the same residence due to financial constraints or other reasons.
This blog explores how getting divorced in Australia while living under the same roof can be achievable.
What is a Divorce?
A divorce is the legal process of ending of the marriage.
It recognises legally that a marriage has irretrievably broken down, and there is no possibility of reconciliation.
It also allows both parties to move forward and remarry if they choose to do so.
Commonly “getting a divorce” is also used to refer to the division of property upon married parties separating.
This is more properly called a “property settlement”.
A divorce does not set out or decide property division or care arrangements for children of the marriage.
When Can I Get A Divorce?
The Family Law Act sets out how to obtain a divorce in Australia. You must prove that you and your spouse have been separated for at least 12 months and that there is no reasonable likelihood of reconciliation.
Keep below as you will find out some key information on how to make getting Divorced in Australia while living under the same roof possible and achievable for you.
However, short periods of reconciliation, up to 3 months in total over 15 months, will be allowed provided the total actual separation period is 12 months.
Why Do People Live Under The One Roof After Deciding To Separate?
There are many reasons why couples may continue living under the same roof after deciding to separate.
This can sometimes be the reason people see getting a divorce in Australia while living under the same roof to be too difficult.
The main reasons are:
Financial constraints, the care and emotional health of children, inability to determine property ownership issues or cultural reasons are among the most common.
Additionally, some couples will choose this arrangement to maintain a sense of stability during the divorce process to ease the transition for the children.
Can I Be Separated And Still Live Under The Same Roof?
It is possible to be legally separated while living under the same roof in Australia.
The court which deals with divorces, being the Federal Circuit and Family Court of Australia, recognises that physical separation may not always be immediately feasible for some couples once they have decided to end their relationship.
However, this court will require that you demonstrate that you live independently of one another for at least 12 months to allow the divorce to proceed.
What Will The Court Want As Evidence Of Separation Under The Same Roof?
The court requires evidence to confirm your claim of separation under the same roof.
This is achieved through the filing of affidavits (sworn statements) which will set out details of the separation.
At least two affidavits are required. If both former spouses are cooperative, then the court will accept an affidavit from each of them.
However, if one separated party will not assist then the applying spouse will need to obtain at least one further affidavit from a third party who is familiar with the separation occurring and can give direct observation that the separation has occurred.
Some common examples include noticing that the parties are residing in separate bedrooms, being told by one or both of the parties that separation has occurred and noticing that the parties lead separate social lives or have re-partnered.
A spouse affidavit will need to set out details of the separation including when it occurred and how in practical terms the parties have separated.
This can include sleeping in separate bedrooms, the ending of the intimate relationship, how the household bills are paid, cooking and children care arrangements, the leading of separate social lives, one or both of the parties having re-partnered, whether a government agency/s such as Centrelink has been informed of the separation and finally what other third parties including other family members and friends are aware of the separation occurring.
Not all of these criteria need to be met and each individual circumstance is different. It is important to at least look at these issues to see which may apply.
Who Prepares The Affidavits Needed To Show Separation Whilst Living Under The Same Roof?
In a joint divorce application, which is filed and signed by both parties, usually both parties will each swear an affidavit about the details of separation.
In an individual divorce application, it is possible to contact the former spouse to see if they will cooperate and then an affidavit from them is prepared by the party filing the application. If they are not cooperative, then a third party who is familiar with the separation occurring will need to swear an affidavit which is again prepared by the spouse who is filing the application (or their solicitor).
What Happens If I Can't Get My Spouse To Assist And I Don't Have Any Third Parties Who Are Aware Of The Details Of Separation?
This is commonly the most difficult issue experienced when separated and living under the same roof.
Simply filing one affidavit by the applicant will not be successful in obtaining a divorce.
It is important to then examine whether a government agency has been informed of the separation or there is some person, even an adult child, who may be able to assist.
Otherwise, it may be necessary to defer the divorce application until 12 months following one party moving out of the former matrimonial home.
What If We Reconcile And Then Subsequently Separate For A Second Time Whilst We Are Living Under The Same Roof?
The court allows for periods of reconciliation but not to exceed three months over a 15-month period.
In other words, if periods of reconciliation exceed three months whether as one period or several periods of reconciliation and 12 months of actual separation has not occurred then for practical purposes the clock will reset, and a fresh 12 months of separation will need to occur prior to applying for divorce.
It is important when you are unsure as to how periods of reconciliation could impact the divorce application that you obtain legal advice as to whether you need to defer the application until a later date or are still able to proceed.
What If We Live In Different Parts Of The Same Property? What Does The Court Need To Know?
Where you and your former spouse live in different parts of the same property, for example there are two separate homes or a home and a granny flat, then it is a question of fact as to whether you are living under the same roof.
If it is the case that you share that the same address but don’t live under the same roof, then usually a short affidavit from the applicant can be filed with the court explaining those unique circumstances.
When Is The Issue Of Living Under The Same Roof Dealt With By The Court In A Divorce Application?
The filing of affidavits confirming that separation has occurred despite living under the same roof can occur at any time up to the actual hearing date of the divorce application.
It is encouraged however that the required affidavits are prepared and filed at the time of filing the divorce application or shortly thereafter to ensure that there are at least two affidavits filed confirming the details of separation.
This will avoid the divorce application being adjourned or even dismissed for lack of evidence as to separation.
For clarity, there is no separate application as to living under the same roof and this issue will be dealt with as part of your divorce application itself.
Does It Cost More to File For Divorce If We Are Living Under The Same Roof After Separation?
The court filing fee remains the same whether the parties are physically separated or not.
If you obtain legal assistance, it is common that an extra lawyer’s cost will be charged to prepare the two or more affidavits required.
At Your Divorce there is an extra charge of $110 to prepare the affidavits.
Further Comments
You can certainly get divorced in Australia while living under the same roof.
Proving that you are separated and living under the one roof can seem a little daunting but with some careful thought and assistance the affidavits that are required can be prepared and filed with the court.
The Team at Your Divorce have prepared hundreds of these affidavits.
It is important to get proper advice and the Team at Your Divorce understand the complexities involved in this area.
If you have any queries, you can contact them by email at help@your-divorce.com.au for initial assistance and guidance.
For further information regarding living under the same roof after separation and navigating the challenges and emotions of doing so please read our supporting blog 10 Tips For Surviving Separation While Living Together.
We also have a great video you can watch below about a client that has gone through this exact situation.