What constitutes separation?
For a defacto couple’s property settlement it is important to determine when separation occurred. Is it moving out of the house or can you be in the house but separated?
The Family Court has determined that separation is when the following 3 elements are present;
- An intention to separate;
- Acting upon that intention; and
- Communication of that intention to the other spouse.
The process for determining a ‘date of separation’ is the same for a defacto relationship as for a marriage.
Whilst it may seem relatively straightforward, what constitutes separation can sometimes be a grey area.
The issue of separation was recently considered in a case on appeal where the wife opposed the husband’s application for divorce on the grounds that they had not been separated for 12 months. She argued that the parties had maintained a married relationship even though they were not ‘living under the one roof’. She said they were only living separately because of the husband’s mental health issues, and that they otherwise continued to socialise together and engage in personal intimacy right up to just before the husband filed his divorce application.
The husband’s account of these reasons for separation were different, but to some extent he agreed that they had continued a relationship as the wife had contended, however he said that his contact with the wife was on the basis of ‘friendship/religion or obligation’ but that he had been clear to the wife that they were separated and that he had no intention of reigniting the marriage.
The Judge in the first instance had taken the wife’s case at its highest and still found that the parties had been separated for at least 12 months. The appeal Court agreed with the single Judge’s decision and dismissed the wife’s appeal.
Reasons for being separated but living under the one roof
There are many reasons why a separated couple may remain living together, including:
- Financial – people often can’t afford to pay rent and/or mortgage repayments for two households;
- Children – people may remain living under one roof to give children stability and to share the parenting responsibilities while other arrangements are sorted out;
- Property – people may remain living together to keep an eye on the property, furniture and other items, or to ensure that items remain at the house until property settlement can be sorted;
- Convenience – it is difficult and expensive to set up a second home, and homes are often close to schools, workplaces, hobbies and family, so it may be more convenient for couples to remain in the same property for a period.
What’s required for separation under on roof?
Frequently, and particularly when couples are separated under one roof, people disagree on the date of separation. This can be a grey area, particularly if you are living together and the separation occurs over a period of time.
How to establish a “separation’ under one roof” is not straight-forward, broadly speaking there needs to have been a demonstrated and fundamental breakdown of the core components of the relationship such as;
- separate finances,
- separate sleeping arrangements, and
- separate domestic tasks.
The analogy is often given of a ‘glass wall’ down the middle of the home with two separate households operating either side of it.
You are not alone
Separation is a difficult time for people, and it can be even more emotionally draining and stressful to continue to live under one roof after separation. If you are separated or thinking about separation, it is important to obtain legal advice early on to weigh up the options and ensure you are informed about your rights. Your solicitor can also talk about some of the practical things you should consider, and what options there are in terms of moving out or the other party moving out of the home.
We offer a no obligation, fixed fee initial consultation where a solicitor can talk with you about separation, and steps moving forward. Call us on (07) 3221 4300.
