Separation Under The Same Roof – Can It Be Done?

When a couple separates, there can be a number of reasons why they choose to stay under the same roof until they are able to finalise their property settlement.

The main three reasons separated couples remain under the same roof are:

1. The couple may want to keep things as normal as possible for the children, depending on the children’s needs and ages. For example, if the children are very young and/or have special needs and rely on both parents heavily for their health and wellbeing, or if the children are entering year 12 at school and the parents wish to reduce their stress (if at all possible).

2. The couple may not have reached an agreement yet in relation to which of them is to retain the former matrimonial home and until that is decided by the Court or agreed upon by the couple, neither of them may wish to leave.

3. Finance. The couple may have reached an agreement in relation to who is retaining the former matrimonial home, however the person who is not retaining the home may not be able to afford to move out of the property until they receive a settlement sum from the person who is keeping the home. This is becoming more prevalent with separations in circumstances where the property market (including the rental market) appears to be showing no signs of cooling off.

How does a couple prove that they are separated whilst both still living under the same roof?

In South Australia, in order to make a successful divorce application a coupleneeds to demonstrate various factors including (but not limited to):

1. As at the date of separation, both parties regard the marriage as over;

2. That the couple have been separated for a minimum of 12 months; and

3. That there is no reasonable chance that the parties will live together again as a married couple.

Some of the factors a couple may need to demonstrate to the Court to prove that they are separated (despite living under the same roof) include:

1. The separation of finances (for example, any existing joint accounts being closed and each person utilising their own separate finances);
2. Changing sleeping arrangements (for example, sleeping in and utilising separate bedrooms);
3. Changing the performance of household duties (for example, no longer cooking meals for each other, shopping independently for groceries, etc.);
4. Changing childcare arrangements (for example, tending to and caring for children separately and not as a family unit);
5. Removing each other as beneficiaries for life insurance, superannuation, wills and any other legal arrangements;
6. Notifying government agencies such as Centrelink, Child Support or the Australian Taxation Office;
7. Ending of a sexual relationship;
8. Telling family and friends about the separation; and
9. Ending social obligations to each other (for example, no longer attending social activities and/or family gatherings together).

If there is no contention (for example if both people are in agreement about separation date), then one person will not need to attempt to convince the Court of the above factors.

However, if one of the people is concerned that the date of separation may become a contentious issue then our recommendation is that the person keeps a written record of any date they believe the separation took place. This is assisted by written communication to their former spouse (for example, by email or a text message) advising that their understanding is that separation occurred on a certain date (which is specified within the written communication).

Get in touch!

If you require any assistance with your separation, or if you are considering separating with your partner and wish to discuss your options, please contact our friendly Family Law Team or call 1800 730 842 to speak with one of our family lawyers.