Often when people separate from one another, they may remain living together in the same house. This is not an issue until one or both parties seeks a Divorce and has to prove to the Court that they have not been part of that spousal relationship for at least a 12 month period.
If you have been living in the same home as your spouse but have been separated, this is what is known as ‘separation under one roof’.
If you and your spouse have been living in the same home for all or part of your required 12 month separation period you will need to provide evidence of your separation. This will come in the form of evidence from you and/or your spouse, as well as information from friends or others who know of your relationship status and can provide evidence.
Have you been separated but living under one roof, and want to submit an Application for Divorce? We can help. Speak to our Divorce lawyers in Melbourne today on 03 9878 5222 for a free 15 minute phone call about your options.
Do I need to provide extra information?
When the Court is making a Divorce Order, the Court must be satisfied that the parties have been separated for 12 months. This is done in three ways:
- Both parties live apart, and both parties are aware about the end of the relationship. The Court normally accepts this as evidence of separation.
- Both parties live under one roof, but both are aware the relationship is at an end. This is considered to be separated under one roof, and the Court requires the applicant(s) to provide an Affidavit giving further evidence of separation.
- Part or all of the 12 month separation period has included living under one roof. The Court requires the applicant(s) to file an Affidavit providing further evidence of separation.
What documents do you need to submit to prove separation under one roof?
When submitting your Application for Divorce, you will need to support this document with an Affidavit which outlines your living situation and proves your separation.
This document will need to outline:
- Changes to sleeping arrangements and any sexual relationship that you have with your spouse.
- How you presented your relationship to children, family and friends.
- Whether you and your spouse continued to socialise together.
- Whether you and your spouse continued to provide each other with assistance in the home such as cooking for one another, doing each other’s laundry and cleaning.
- Whether you informed government organisations (such as Centrelink) of the change of the status in your relationship.
- Whether you outlined any clear arrangements for the care of any children.
You will also need to provide some information as to why you and your spouse continued to live under one roof.
Who needs to submit an Affidavit to show separation under one roof?
If you are applying for a Divorce on your own, you will need to submit an Affidavit. You also need to file an Affidavit from an independent person, such as a family member or friend, who knows what your relationship is like and can answer questions similar to the above.
If you are applying for Divorce with your spouse, you will both need to file an Affidavit each. If only one of you can file an Affidavit for any reason, then you will need an independent party to file as well.
Each Affidavit must be as detailed as possible, with as much information about your relationships as possible.
Do you have to attend Court?
If you have made a sole application, and there is a child from the marriage under 18 years, then you must attend the Court hearing.
In all other cases, so long as you outline the details of your separation and file the Affidavit(s) as required by the Court, you do not normally need to attend the hearing.
Possible outcomes for your Divorce Application
If the Court considers that you and your spouse might reconcile, the Court may adjourn the hearing for the Application for Divorce and advise that you and your spouse attend family counselling. This will usually only happen if the evidence of separation that you have presented does not entirely satisfy the Court of an actual separation.
It will not be ordered if you have experienced family violence, or if you cannot locate your partner, for example.
It is not unheard of for parties to separate and live apart, and then try again to reconcile the relationship. if you have lived with your spouse again, for a period of less than three months, and only once – then you can add the time together before your separation and after you stopped living together again.
For example, you might separate from your spouse and move out of your home for five months. You may then move back in to try cohabiting again for two months only to decide to Divorce at the end of the two month period and move back out. You can apply for Divorce after only another seven months, as this equals a total of 12 months of separation.
Need some help from Divorce lawyers Melbourne? Rose Law are here to support you with experience and care. Call us on 03 9878 5222 for a free 15 minute chat about what you need for a straightforward Divorce application.
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