If a married couple has separated and wishes to file for divorce, the Federal Circuit and Family Court of Australia 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 court 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.

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 proving separation under one roof.

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 court 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.

The nature of the parties’ commitment.

The court will consider the parties level of commitment to each other and their relationship.

Parties must also inform the court which if any government agencies that have been advised of the separation.

Overall, the Court will look at the “whole picture” of the relationship. 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.

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