_{Co-authored by Michael Kinsella}

Separating from your partner often involves significant social, financial and mental strain. In Australia, thanks to the high cost of living, it’s increasingly common for parties to separate but not physically, rather, they remain ‘separated under one roof’.

This blog will discuss what separation under one roof entails, the current trends underpinning this mode of separation in NSW and the ramifications it has for your Family Law matter.

What is separation under one roof?

Separation occurs where one or both of the parties in a couple severs their relationship on a permanent or indefinite basis. Separation under one roof occurs when the former couple continues to live in the same home after separation.

Cohabitation with a former partner is affirmed under section 49(2) of Family Law Act (the Act). It allows parties to live separately “notwithstanding that (the parties) have continued to reside in the same residence.” However, parties must close any joint bank accounts and sever legal obligations in order to prove separation beyond physical circumstances.

In addition to this, the courts may consider one or all of the following factors in determining separation under one roof:

• Separating finances and closing any joint accounts
• Sleeping separately under one roof
• Informing friends and family of the separation
• Considering whether or not the parties are still intimate
• The nature of the commitment in the relationship.

The popularity of separating but remaining under the same roof can be attributed to the current cost of living and rental crisis. Other reasons include childcare arrangements or a desire to avoid conflict. It provides couples with an alternative to the burdensome process of moving out after a divorce.

Separation under one roof is becoming less demographically inclined. However, the trend follows that former couples of a lower socio-economic status tend to remain at the same residential address throughout the divorce application process and beyond, primarily due to financial constraints.

Beyond the emotional difficulties of separating under a single roof, this form of cohabitation can significantly impact the progression of Family Law proceedings.

Issues of showing separation when living with a former partner

Before a couple files for divorce, the court must be satisfied that the marriage has irretrievably broken down (s 48(1) of the Act). This is evidenced by both parties living separately for 12-months immediately preceding the date of application. Typically, this physical distance prior to the divorce application is evidence enough to show separation.

However, in the case of separation under the same roof, it can be more difficult to show that the marriage has irretrievably broken down. This is because consistent lines of communication remain and, to an extent, shared financial assets.

In the case of Morris v Morris, Judge Nettlefield affirms the nature of separation as perceived by the courts in the context of a continued-living arrangement:

“If all the essential qualities of a common life are gone, the parties can be said to have separated. And that can be asserted, and asserted accurately, notwithstanding that difficulties in respect of accommodation, or financial difficulties, leave them closer together in space than they would be if those difficulties did not exist.”
– Per Nettlefield J in Morris v Morris [1972–73] ALR 893 at 896

In order to demonstrate an irretrievable breakdown of marriage within an application for divorce, couples still living with their former partner need to record the exact date of separation, as well as any periods of cohabitation since the separation date. Additionally, the court requires two affidavits to confirm the separation under the same roof. The contents of the affidavits change depending on the nature of the application:

• Sole application for divorce: One affidavit from the sole party seeking the divorce and a second affidavit from a third party who has seen or heard about the separation and the circumstances under which both parties are still living together; or
• Joint application for divorce: One affidavit from each party or one affidavit from either party and an affidavit from a third party who has seen or heard about the separation and the circumstances under which both parties are still living together.

These additional affidavits are used to show that the couple remained truly separated for the 12-months whilst living together. Individuals who write affidavits may have to attend court, as the truth of their statement may be examined upon request.

Ultimately, separation under one roof provides a practical alternative to couples who remain on amicable terms in order to avoid the socio-financial pressures of moving out alone or with children. This form of cohabitation is affirmed both at a statutory and common law level for divorce applications, indicating its viability for couples who may not have the capacity to move out at the point of separation. It is, however, important to note that there are additional concerns for couples living together post-separation, including difficulties proving the separation itself and the emotional weight of continuing a domestic relationship with a former partner.

How we can help

If you have questions or require assistance with or advice regarding your separation, please contact Coleman Greig’s Family Law team.

_{This material is provided by Coleman Greig Lawyers as general information only in summary form on legal topics current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.}