Separating from your partner while still living in the same house (known as separation under the same roof) can happen for various reasons. Some reasons include:
- Financial difficulties in finding suitable accommodation;
- Maintaining a family unit for the sake of children;
- One or both parties are unwilling to leave; and/or
- Social distancing during the coronavirus pandemic.
This article aims at providing some guidance on how you may manage a separation under the same roof.
Before Separation – Safety first
The most important thing to remember is that you should not live in a home with your ex-partner if it’s not safe to do so or if you and/or your child/ren are subject to family violence. We would encourage you to consider the following before you decide to separate:
- Get help: An experienced Family Lawyer can give you advice on where you stand legally and provide the appropriate referrals if required. Make sure that you have support around you from friends and family.
- Gather all of your personal paperwork such as your passports, your marriage certificate, your and your children’s birth certificate and valuables and keep them safe.
- In order to protect your privacy, you may wish to change passwords for your personal bank accounts; for example, your online banking, any email accounts and social media accounts.
- Record the date you separated from your spouse/partner.
How is the date of separation determined?
Sometimes there will be a disagreement about the actual date of separation, especially where the parties are still living together under the same roof. Inconsistent separation dates can become troublesome when applying for a divorce or negotiating a property settlement. It may also be relevant to your application to Centrelink for government benefits if applicable. The accurate date can be determined by taking the following factors into consideration:
- Are you sharing a bedroom with your spouse?
- When did you stop sleeping with your spouse in the same bedroom?
- Is there a continuing sexual relationship?
- Are you sharing finances together?
- Do you continue to socialise together outside of the house as husband and wife?
- Do your friends and family know that you are separated?
- Are you still caring for one another and sharing domestic tasks such as cleaning and cooking?
- Have you notified Centrelink, Child Support or any other government agency of the separation and have you updated your relationship details with the government agencies?
Tips for managing separation under the one roof
Separating from your spouse/partner can be extremely stressful. You may find the following tips helpful:
- Get professional help if you are not coping well. There are counselling services available for men and women who are struggling with the breakdown of a relationship.
- Tell friends and family as soon as a separation takes place. They may be able to provide an affidavit confirming that you have separated for a period of at least 12 months.
- Try to keep things civil and keep children out of the conflict.
- Avoid making radical decisions. Plan your exit when you can if you find that you simply cannot cope with living in the same house any longer.
- Get your finances and documents in order by opening a bank account in your sole name, closing joint bank accounts, and informing institutions such as banks, superannuation funds or insurance companies. Start depositing all your regular payments such as pay and/or government benefits into this new account.
- Before leaving the family home, please seek legal and financial advice first so you can be sure that you are making the right decision having considered all relevant factors.
It is possible to achieve a financial settlement and Divorce Order even if you are living under the one roof?
Yes. A Divorce Order is an entirely separate process to property and parenting matters. It is the formal process of severing a marital relationship and once granted allows parties to re-marry should they wish to. There are two prerequisites for a Divorce application:
- That there has been an irretrievable breakdown of the marriage; and
- That the parties have been separated for 12 months or more.
If you have separated under the one roof, and have been separated for over 12 months, you can file an Application for Divorce. To support your application, the Court requires an affidavit from the applicant and a friend or family member to prove to the Court that you and your spouse have been separated.
Do I have to go to Court? and who must attend?
Neither party is required to attend the hearing if:
- there are no children of the marriage under 18; or
- the application is a joint application.
If the application is a sole application and there are children under 18, the person seeking the divorce (the applicant), and/or the applicant’s legal representative, must attend the hearing. Once a Divorce Order has been granted, the Order does not become effective until one month and one day after the granting of the Divorce. After this date, you have 12 months to file an application for property settlement with the Federal Circuit and Family Court of Australia.
How we can help
If you have separated under the same roof or would like advice in relation to filing for a Divorce, please visit our Divorce and Separation page or book an obligation free consultation. It is important to see a lawyer as soon as you separate from your spouse/partner, or even prior to separating from your spouse/partner.
Contact us today, The Family Law team at JurisBridge Legal cater for your specific needs, provide you with tailored advice with all matters relating to Separation and Family Law Orders, and provide appropriate referrals where necessary. We can help you find out where you stand and ensure that you are fully informed about your rights and entitlements after separation. We will help you with:
- Making future parenting arrangements for the care of your children;
- Negotiating a property settlement;
- Preparing your application for divorce;
- Exploring options as to any entitlement to spousal maintenance; and/or
- Running the process as smoothly as possible for you.