When you apply for a divorce, you are essentially seeking to formally end your marriage in the eyes of the law. This process is separate and distinct from formalising any matters in relation to your children or property (note however that there are time limitations to consider). One question we often get is: can you successfully apply for divorce when you are separated under one roof?
When you are preparing to separate from your spouse with a view to obtaining a divorce, you will need to consider the timeframe between when you separate and when you submit your application for divorce to the Court. In order to obtain a divorce, you will need to satisfy the Court that:
- you and your spouse have lived separately and apart for at least 12 months; and
- there is no reasonable likelihood of resuming married life.
Have we separated?
Consider what “separately and apart” means, for the purposes of your divorce application.
Put simply, separation occurs when one spouse conveys to the other that the marriage has ended.
For various reasons, couples may choose to continue living together after the relationship has ended. This may be for any number of reasons, including for the benefit of their children or due to their financial circumstances.
What if we are separated under one roof and still living in the same home?
If you and your spouse decide to end your marriage but continue to live in separate bedrooms within the marital home for the next 12 months, are you separated for the purposes of the application?
If your spouse moves out but returns to stay the night occasionally on the weekend, in a separate bedroom, are you separated for the purposes of the application?
Separated under one roof is the term used to describe when couples separate but continue to live in the same home, regardless of whether it is for a few days, a few weeks or the entire 12 month period.
If you and your spouse continue an arrangement whereby you live under the same roof at any time during the 12 month period after separation, you will require corroborating evidence to support your application for divorce. This corroborating evidence will need to be in the form of a sworn, written statement (affidavit).
Applications for divorce can be sole or joint. If yours is a sole application, you are required to provide an affidavit of yourself and one other person – your witness. If yours is a joint application, you and your spouse are both expected to file an affidavit, along with your witness affidavit. Your witness will ideally be someone who has seen you and your spouse living separately under the same roof, following separation, such as a parent, sibling or close family friend, so that they are able to comment on the various matters to be addressed.
Matters to be addressed in the affidavits
- Your reasons for remaining living under the same roof after separation;
- Your changed sleeping arrangements – moving from a shared bedroom to separate;
- The separation of your finances;
- The reduction in family activities you previously did together;
- The reduction in performance of general household duties for each other (cooking, cleaning etc);
- Details of notification of your separation given to your family, friends and relevant government departments (Child Support Agency, Centrelink); and
- The living arrangements for any child of the marriage who is under the age of 18 years, during the period of separation and while you remained living under the same roof.
Once you have filed your application and supporting documents, as set out above, the Court will allocate a date for hearing your application. If you and your spouse have continued to live separately under the one roof, you will be required to attend the Court hearing, along with your witness. If the Court requires more information before granting the divorce, it will adjourn and direct you to file further material.
In light of the above, if you have recently separated or are considering separating from your spouse and would prefer to avoid unnecessarily complicating your application for divorce, it is preferable that, where circumstances permit, you and your spouse live in separate households following separation.