Kiddipedia
For many parents, the home can be the foundation of the family. It is the source of countless memories, milestones and moments. So, can the family home continue after separation?
One of the first questions many couples ask themselves after deciding to separate is whether they will continue to live in the family home or move out. There are several factors at play when making this decision. House and rental prices, whether the family home is owned in joint names, conflict in the home and the impact a move may have on children, are all considerations couples must grapple with.
On top of this, separation during the current COVID-19 pandemic often means that moving out of the family home is neither feasible nor practical. Therefore, some couples are forced – at least in the short term – to navigate the space of being separated under one roof.
It may come as a surprise to know that in 2017, 38,692 people were registered with Centrelink as being separated under one roof. This figure was up from 35,103 in 2016 and is likely to continue to grow.
With separation under one roof becoming an increasingly common arrangement, it is important that couples understand how this may impact other legal aspects of separation such as divorce. As a general rule, an application for divorce must be based on the grounds that the marriage has broken down irretrievably. This is usually proven if the parties have separated and lived separately apart for a continuous period of no less than 12 months.
Applying for the divorce itself is usually a straight forward process. Couples can complete the documents online. There are also online resources where lawyers can take care of the hassle of completing the documents for couples and submitting them on their behalf.
However, if the couple has been separated under one roof, additional evidence must be provided to demonstrate that they are in fact genuinely separated. If it is a sole application, the person commencing the divorce proceedings will need to provide an affidavit and a supporting affidavit from a third party. This may be a friend, family member, or neighbour. In the case of a joint application for divorce both parties must file an affidavit. This is required by the Court to prevent couples from circumventing the 12-month requirement by merely picking a date and claiming they had been separated under the same roof since this time.
These affidavits need to present evidence that support the assertion that the marriage has ended and the couple has separated. The types of things that become relevant here are financial arrangements, whether there are separate bank accounts, sleeping arrangements, whether there has been a reduction in shared activities, the absence of a sexual relationship, and the nature of day to day life in the separated household – among other things.
If you are considering make an application for divorce in circumstances where you are separated under the one roof, it is important that you seek legal advice to ensure that your application is not refused. If your divorce is refused, a trial may be ordered and further evidence will need to be presented to the Court on the question of separation. This can be quite a long and costly process for something that should be relatively straight forward.
Ultimately, separation under one roof is not for everyone. It’s tricky and can take some creative ideas for restructuring the household to ensure it works. However, it is important to know that it is an option and that – if you’re willing to work at it – the family home can continue after separation.
This article contains general information only. You should obtain independent legal advice particular to your circumstances.
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