If a married couple has separated and wishes to file for divorce, the Federal Circuit and Family Court of Australia (FCFCOA) must be satisfied that under section 48 of the Family Law Act 1975:
- The marriage has broken down irretrievably and there is no chance of reconciliation,
- The parties have separated for at least 12 months, and
- if there are children of the marriage:
- proper arrangements have been made for their care and welfare, or
- if proper arrangements have not been made for their care and welfare, the FCFCOA is satisfied that it is proper to proceed with the Divorce.
Despite the requirement for 12 month’s separation before filing a divorce application, parties are not required to live apart after they have decided to separate. Separation under one roof is when a couple separate but continue to live in the same house following separation (even for a short period).
Parties may decide to live together after separation for convenience, financial benefits or to provide their children with stability.
A couple may be deemed to have separated when they cease living together as a couple. If “separation under one roof” applies to you, you may need to support your divorce application by filing an affidavit demonstrating a change in your marriage.
How to prove separation under one roof:
Your affidavit will need to illustrate changes in the marriage which show that you and your spouse have separated. It should also explain why you and your spouse continued living together following the breakdown of your marriage. The FCFCOA will consider whether you and your spouse stopped acting like a husband and wife, in which case separation will have taken place.
The Social Security Act 1991 sets out a range of factors that must be considered when determining a person is a member of a couple relationship or separated under one roof. Relevant details you should include in your affidavit to prove you are separated include:
- Changes to financial aspects of the relationship;
- Changes to the nature of the household;
- Closing joint bank accounts;
- Opening separate bank accounts;
- Re-negotiating shared loans;
- If you are sharing living spaces such bedrooms, bathrooms and other living areas;
- Changes to superannuation beneficiaries, life insurance, wills or other legal arrangements;
- Changes to household duties;
- Changes in sleeping arrangements;
- Whether you have started independently shopping for groceries, cooking, cleaning etc.;
- Changes to shared telephone numbers or email addresses;
- Changes to social aspects of the relationship;
- Changes to childcare arrangements;
- Whether you are invited to events separately or as a couple;
- If any religious or cultural considerations are relevant in concealing the separation to other people;
- Reduction or absence of shared activities or family outings;
- Evidence that you have announced the separation to family and friends.
- The presence or absence or cessation of a sexual relationship or intimacy (however, this is not a conclusive sign of a separation as separated couples may still engage in a sexual relationship). The sex may be a part of the marriage but sexual relationship in itself is not the evidence that the married couple continued their relationship;
- Not spending time together on special occasions such as birthdays or holidays;
- Whether any of the parties have formed a sexual/romantic relationship with another person;
- Any previous or current AVOs restraining contact between the parties;
The nature of the parties’ commitment.
The Court will consider the parties level of commitment to each other and their relationship by looking at the following factors:
- If the parties would provide assistance if the other was in a crisis or ill (especially if it is a long-term serious illness where ongoing care would be required);
- If the parties have any joint plans for the future;
- How often the parties communicate and share information with each other;
- If either party intends to divorce the other party;
- Changes to intimacy and companionship.
Parties will also need to inform the FCFCOA of any government agencies that have been advised of the separation (e.g. Centrelink).
Overall, the Court will look at the “whole picture” of the relationship, rather than focusing on the five factors as mentioned above. All relevant information regarding a spouse’s separation and circumstances will be taken into consideration.
A separated couple under one roof will need to prove to the FCFCOA that, although they live under the same roof, they live and act independently and do not act like a married couple anymore.
Contact us for assistance, support and advice in relation to all Family Law matters such as separation under the same roof.