For some couples going through a difficult period or breakup, taking some time to live apart is a no-brainer. But moving out immediately is not easy and in many cases, it is not always financially viable to do. Especially when you have a family together, share a mortgage and any other assets. Many separated couples end up living together for a period of time before they establish long-term living arrangements. It is oftentimes uncomfortable and can end up being the butt of many jokes but it is definitely not a rare occurrence.
One of the most commonly asked questions surrounding separation-based legal proceedings is whether or not living apart is required to prove separation. When filing for divorce or legal separation, while it certainly is easier to clarify when each individual has a different living arrangement – it is not a requirement. There is no law that states you must be living in separate homes, just that you are living separate lives.
What Is Separation Under One Roof?
Separation under one roof is the term used to describe couples who are no longer together in a romantic relationship but are still living together practically. Providing evidence of a 12 month separation period is required when filing for divorce. In a situation where two ex-partners have been separated under one roof for some or all of the 12 month period, extra information needs to be supplied to the Court to prove that you have been living separate lives.
What Constitutes Living Separate Lives?
Living separate lives means that you and your ex-partner no longer spend time socially together or perform tasks together as a couple. This includes:
- No longer sleeping together
- Dividing finances
- Changing wills, superannuation
- Making arrangements about caring for children
- A change in your previous living style
- Changed arrangements for your household
What Extra Information Do I Provide When Applying For Divorce?
If separation under one roof applies to you, then you will need documentation that shows you and your ex-partner have been living separate lives. You should support your divorce application with an affidavit and consult a reliable legal professional who specialises in family law for advice.
An affidavit is a written statement by a party or a witness used to supply evidence to a Court. You need to swear or affirm the affidavit before a person authorised to witness affidavits like your lawyer or a Justice of the Peace.
In addition to proving that you have been living separate lives by demonstrating the points above, you will need to explain:
- Why you and your ex-partner continued to live on the same premises,
- What intention you have of changing the circumstance,
- Living arrangements made for children or dependents of the marriage aged under 18,
- If you are receiving government benefits e.g Centrelink, DHS (child support), what government departments you have informed of your separation.
Will I Lose My Property Rights Once I Do Leave My House?
This answer is a resounding no. You should not feel deterred to leave your property or your partner out of fear of losing property rights. Leaving does not equate to losing your share of your house or any other property for that matter.
Even if your name is not on the title of your family home, in the event of separation and divorce, you can legally protect your interest through what is called a caveat. To learn more about this, you should seek legal assistance from an expert in family law and property settlement.
It always best to discuss your situation with a professional as soon as you can to start with the right steps towards your division of property legal arrangements. Living under the same roof for a period during separation should not have to make things a lot more difficult than they have been.