Spouses must be separated for 12 months to apply for divorce, leaving many family law clients unsure of what will happen if they continue to live with their ex following a relationship breakdown. This blog explains what occurs when you are separated from your spouse but still living under the same roof.
Former partners continuing to live together was quite a common occurrence during the COVID-19 pandemic lockdown when people had restricted movement and uncertain employment and housing prospects. This is also quite a common occurrence in situations where spouses are attempting to negotiate or resolve a property settlement and/or there are children of the marriage and parenting arrangements are being negotiated.
If you and your spouse lived in the same house during part or all of the 12-month separation period, you need to provide extra information when filing your Application for Divorce with the Federal Circuit and Family Court of Australia.
If you and your spouse file a joint Application for Divorce, then you and your spouse will each need to file your respective affidavits.
If you file a sole Application for Divorce, then in addition to filing the Application for Divorce and your affidavit, you will need to arrange for a third party witness to also swear an affidavit confirming they have observed you and your spouse living separately under the one roof. This witness may be a family member, friend, neighbour or work colleague.
The affidavits need to illustrate that although you and your spouse are living under one roof, you are not living together as a couple.
For example:
- You and your spouse have separate bedrooms and/or have changed sleeping arrangements;
- You and your spouse are no longer physically intimate;
- You and your spouse no longer undertake home duties for each other, such as cleaning, cooking, etc.
- You and your spouse no longer socialise together with family members or friends;
- You and/or your spouse have notified government departments such as Centrelink that you are separated under one roof;
- You and/or your spouse have notified family members, friends, neighbours, work colleagues etc, that you are separated but remain living and the same roof
- Your and/or your spouse have opened separate bank accounts and are commencing the process of separating financially; and
- The circumstances of why you and your spouse remain living separated under one roof, such as negotiating on a property settlement, difficulty in finding alternate housing or wishing to parent the children of the marriage under one roof.
