Have you come across the term separation under one roof? Are you wondering what it means and how exactly it works?
Here’s everything you need to know about separation under one roof, from family lawyer and mediator of over 30 years, Ian Shann.
What Is Separation Under One Roof?
The Australian Family Law requires couples to have been separated for a period of 12 months before they can apply for a divorce. For marriages that have lasted less than two years, the separation period is 24 months. The same rulings apply to de facto relationships.
In many cases, it may not be practical or financially viable for both ex-partners to be living and paying for two households. In such cases the law makes provision for a couple to remain under one roof but they must be living “separately”. Legally, this is known as separation under one roof.
This scenario is usually not ideal, sometimes adding to the level of stress the couple may already be experiencing.
There are certain criteria that must first be met before a couple can be considered “separated under one roof”.
Proving separation under one roof can be a complex affair, sometimes requiring legal advice and assistance. The sooner you seek professional advice, the better.
How Do I Prove Separation Under One Roof?
You will need to file a written affidavit to verify that you have been living “separately and apart” for the requisite time in order to support a divorce application. The affidavit will need to address the following:
- The date of the commencement of the separation.
- Functioning in the household: sleeping in different rooms, not having a sexual relationship and effectively living separate lives in the same household (not sharing the normal household functions of shopping, cleaning, cooking etc).
- Separating the financial involvement as much as is practicable. Joint mortgage payments would generally be OK but repaying the other party’s debts probably would not.
- Evidence that there is no emotional, intimate, or companionship support between you and your ex. Also show that there are no future joint plans.
- Show that you both present yourselves as separated in your social circles and that close friends and family are aware that you are no longer a couple and that you socialise separately.
- List of government departments you have notified of the changes to your marriage or relationship.
The Court may request further documentation if deemed necessary.
Do I Have To Attend Court To Prove Separation Under One Roof?
If you have made a sole application for divorce and there is a child under 18 years of age involved, you will have to attend the Court hearing.
As having a child involved also requires you to first attempt family mediation, your mediator will be the best person to advise you further on this matter.
If no children are involved and you have set out your circumstances and filed all the relevant documentation, you’ll not be required to appear in Court. You will be informed if the Court requires any further documentation.
Do I Have To Separate Our Finances?
Joint accounts should be closed and new accounts opened in your own names.
You must decide who pays for what in your new living arrangements, including payment of loans. You should also look to remove each other as beneficiaries to your insurance policies, wills and superannuation.
What Happens To My Centrelink Payments After We Separate?
If you are receiving Centrelink payments, you are legally obligated to notify them immediately of any changes. If you are receiving payments as a couple, you may be entitled to a different amount as a single person.
You will be required to fill in an SS293 separated under one roof form and provide the necessary documentation as listed above.
Can I Get Divorced While Separated But Living Together?
You certainly can, as long as you follow the procedure stated above. You may have realised by now that the process for being separated under one roof could be a fairly complicated and drawn-out affair that may require legal advice where you continue to live under one roof.
If you’re ready to move on with your new life, get in touch with Ian today to discuss how family mediation can help you.