24 Jan Living Under One Roof in the Face of the Pandemic
During the COVID-19 pandemic, many cases of separation were reported yet the parties involved were incapable of going different ways and were forced to live under the same roof as a result of either economic hardships or lockdown restrictions.
Under Australian law, the general rule is that you must be separated from your partner for 12 months in order to start the divorce application. However, it is worth noting that it is not a strict requirement that parties should be living apart to prove that they’re separated. It is still possible to separate while still living under one roof. In law, this is referred to as being ‘separate under one roof’.
‘Separation under one roof’ goes beyond showing that the two of you were living apart. Rather, the parties involved must prove to the Court that they have not only spoken about the separation but have also acted like a separated person both inside and outside the residence from the time of separation.
Recognizing the prevalence of such arrangements in Australia, section 49(2) of the Family Law Act provides:
“The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding they have continued to reside in the same residence but either party has rendered some household services to the other.”
There are various reasons why people separate but still choose to live under one roof. These reasons include economic hardships, for the best interests of the child(ren), and due to convenience of the family home whether it’s the distance to work, school, or the availability of social amenities.
A Divorce Order is the formal process of separating a couple. There are two requirements for a divorce:
- An irretrievable breakdown of the marriage
- Parties have separated for 12 months or more.
If you and your partner have lived under the same roof, yet you’ve separated, you will be required to explain to the Court why you continued to share the same residence and provide further evidence for the separation.
When applying for a divorce, the above claims shall be supported by an affidavit that further testifies that you have no plans to resume the relationship. It will also be upon you to show the Court your future living arrangements in case the Court grants you a divorce.
In cases where the divorce is a joint application from both partners, the second affidavit can be from your spouse. However, in divorce proceedings where divorce is the sole application of one of the parties, a third-party witness affidavit can be used if the person is over eighteen years old.
In case parties have separated but still retain their residence (separate under one roof), the date of separation is the day when one party communicates the breakdown of the marriage to the other. This could either be express or implied. It can either be when one party expressly informs the other party of their intention to separate, or one party moves to another room and starts living separately while still under the same roof/residence.
The Application for Divorce is supported by an Affidavit from either the applicant or a third party (e.g., a friend) that provides proof to the Court that the parties have indeed separated.
At Adam Jones Solicitors, our lawyers are involved in family law matters and are available to assist you with any clarifications you may need regarding separation and living under one roof arrangements.