Many people assume that once a relationship ends, one person must move out before they can apply for a divorce. However, it is not uncommon for spouses to separate but continue to live together for a period before beginning to live separately. This is commonly referred to in Australian Family Law as ‘separation under one roof’. If you and your spouse are separated under the one roof, can you still get a divorce? And what are the requirements? This article seeks to answer those questions.
Eligibility for a Divorce
Australia has a ‘no-fault’ divorce system, which means that the Court will not consider who is responsible for the breakdown of the marriage or why the relationship ended e.g. allegations of infidelity, unreasonable behaviour etc. The only requirement is that the marriage has broken down irretrievably, with no reasonable likelihood that you will resume married life together. Under Australian law, you are considered legally separated when at least one spouse decides to end the marriage and clearly communicates that to the other person.
Before applying for a divorce, you must have been separated for at least 12 months to satisfy the Court that there is no reasonable likelihood of the reconciliation. This period of separation can include time spent living under the same roof.
Additionally, to be eligible for a divorce, at least one spouse must be an Australian Citizen, or live in Australia and regard Australia to be your permanent home. If you were married overseas, you can still obtain a divorce in Australia, provided you fulfil the above requirements.
What does ‘Separation under one Roof’ mean?
Many separated couples continue living in the same property due to specific circumstances such as financial or parenting reasons. Being separated under one roof means that although you and your spouse continue living at the same address, you have separated and your relationship has ended. This may be for a few days, weeks, months, or years following separation.
If you and your spouse lived in the same home during part or all of the required 12 month separation period, you will need to file an affidavit with the Court providing extra information.
What Do I Need to Provide in My Supporting Affidavit?
Every family’s circumstances are difference and there is no single factor that determines whether a couple has separated. Instead, the Court looks at the overall nature of the relationship and whether there was a clear breakdown of the marriage.
Therefore, in your affidavit, it is of primary importance that you prove to the court that there has been a change in the marriage, whether gradual or sudden, showing that you and your spouse have separated.
Some factors that may demonstrate separation under the same roof include:
Your affidavit should also explain:
It is helpful to keep clear records throughout the separation period if you are living under the same roof, including financial statements and witness confirmation, to help demonstrate that the marriage genuinely ended more than 12 months before filing for divorce.
Joint or Sole Divorce Applications
You can apply for a divorce either jointly or solely. A sole application is when one spouse applies for the divorce, and a joint application is when both spouses apply together.
In cases where there is a sole application, the applicant must arrange for the divorce documents to be formerly served onto the other party as per the Court Rules. Where the location of the other party is unknown, there are other court procedures that will be required to have this fulfilled. Service upon either party is not a requirement in a joint divorce application, as both spouses are already party to that application
Divorce Court Hearing
Once an application has been filed, a Court hearing will be listed. Most times, for divorce hearing the parties are not required to attend. Provided you have set out the circumstances of your separation and the required affidavits to the Court, it is unlikely that you will have to attend the court hearing.
Court Attendance may be required in some circumstances, such as:
The Court must be satisfied that all requirements for divorce have been fulfilled before granting a Divorce Order, which will be released one month and one day after being granted. If the Court requires more information, it will adjourn the case and direct you to file additional material or to attend the court hearing.
Next steps
If you or someone you know wants more information or needs help or advice with their family law matter, please contact our Intake team on (03) 8415 5600 or email us at reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian jurisdiction only. You should obtain professional advice before you undertake any course of action.