In our previous article “Requirements and Process for Applying for Divorce in Australia”, we introduced the conditions that must be met and the specific application process for applying for divorce in Australia. The article mentioned that one of the requirements for applying for divorce is the separation requirement—before applying for divorce, you and your spouse must have been separated for at least 12 months. However, in reality there may be situations where the two parties have already been living independently yet continue to live under the same roof (separation under one roof). Does this satisfy the separation requirement for divorce?

Separation under one roof

If a couple separates but continues to live in the same house for financial reasons, to care for children, or for other reasons, this is known as “separation under one roof”. The separation may last for days, weeks, months, or years.
Under Family Law Act 1975 (Cth) section 49, where the marital relationship between the parties has broken down, they may be found to have separated even though they continue to live in the same residence or one party continues to provide some household services to the other.
If the parties lived in the same home for part or all of the prescribed 12-month separation period, it is still possible to satisfy the separation requirement, but when applying for divorce you must provide additional evidence to the court to prove that you have met the separation requirement—you must file an affidavit with the court when submitting the divorce application.

What is an affidavit?

An affidavit is a written statement prepared by a party or witness, and is the main way in which evidence is submitted to the court.
The deponent must swear or affirm the affidavit in the presence of a person authorised to witness affidavits (such as a lawyer or Justice of the Peace).

A divorce application may be made by one party alone (sole application) or jointly by both parties. If you are applying on your own, you will need to provide an affidavit from yourself and from another person (a witness). If you and your spouse are applying jointly, both of you must file an affidavit, plus a witness’s affidavit. Your witness should preferably be someone who has sufficient knowledge of your separation under one roof, such as a parent, sibling, or close friend.

What evidence is required for a divorce application based on separation under one roof?

A divorce application is based on the fact that the marriage has broken down irretrievably (irretrievably broken). To prove that separation under one roof satisfies the separation requirement, the affidavit needs to demonstrate that a change occurred in your marriage—whether gradual or sudden—showing that you and your spouse have separated. For example:

• changes to sleeping arrangements;

• a reduction in joint activities or family outings;

• a reduction in performing household duties for one another;

• financial matters—whether you have divided your finances, for example, whether you still share a bank account, whether you jointly repay loans, whether you continue to hold joint assets, and whether you are named as a beneficiary in the other party’s will or insurance;

• and any other matters indicating that the marriage has broken down; for example, that you have informed family and friends of your separation.

If you intend to divorce on the basis of separation under one roof, it is best to inform other people—such as parents, siblings, and friends—of your separation, as the court often requires neighbours, friends, or relatives to provide evidence (an affidavit) confirming that you have separated.

The affidavit should also explain:

• why you continued to live in the same home after separating, and what plans you have to change this situation;

• how you arranged the living arrangements for any children under 18 during the time you lived under one roof;

• if you receive government benefits, which government agencies you have notified of your separation; for example, Centrelink or Services Australia (Child Support). If you have received letters from these agencies about your separation, please attach a copy to the affidavit.

The court will consider these matters to determine whether you meet the following standard—that you decided to separate, and that whether at home or outside the home, your conduct is no longer that of a married couple.

Here is a classic divorce case dealing with separation under one roof [Pavey and Pavey (1976) 25 FLR 450]

The Paveys married in 1945 and lived in the same house for over 30 years. Mr Pavey had been paying Mrs Pavey a housekeeping allowance for the matrimonial home, but ceased this practice after an incident in April 1974. As a result, Mrs Pavey successfully applied to the Local Court for a maintenance order against her husband. After this, the marital relationship continued to deteriorate, and in 1976 Mrs Pavey applied to the Family Court of Australia for dissolution of the marriage, which was refused by the court. Mrs Pavey then appealed to the Full Court of the Family Court of Australia, which allowed the appeal. The court held that the lower court had been wrong to find that the marriage had not broken down, and that the application to dissolve the marriage was therefore appropriate. After examining the Paveys’ case, the court considered that although there were several indications that their marital relationship remained close—for example, they were still within the ambit of “cohabitation, sexual relations, mutual protection, and raising children”—nevertheless, given the natural ebb and flow of marriage, it is not necessary to prove every constituent element when determining the existence of a marital relationship, and not every relationship is the same. Therefore, in deciding whether a separation has truly occurred, it is more useful to compare the nature of the relationship before and after separation. Accordingly, the court found that from the point at which Mr Pavey was ordered to pay maintenance, the Paveys’ marriage had broken down, notwithstanding that the spouses continued to live under the same roof and to perform some household tasks for one another.

Final thoughts

Applying for divorce in Australia is a relatively complex process, particularly given the requirement that before applying for divorce, you and your spouse must have been separated for at least 12 months. However, it is important to understand that, for various reasons, even if the parties have not lived apart and continue to live under the same roof, it is still possible to satisfy the conditions for applying for divorce. If you are unsure whether you meet the requirements for separation under one roof, or if you need professional assistance to submit your application, you may consult our experienced lawyers for professional legal advice.