What’s required to be ‘separated under one roof’?
It is a common misconception that separation occurs only once you start physically living separately. In fact, many couples spend at least a short period separated under the one roof. So, what is that?
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.
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.
Generally, separation requires one party to communicate an intention to be separated, and then back that up by taking action. This action may include living in separate bedrooms, telling family and friends, and otherwise living separate lives.
Applying for a divorce
The date of separation is relevant for a divorce application, as you need to be separated for a period of at least 12 months before you can apply for a divorce. If part of that 12 month period includes a period of living separated under one roof, the court requires parties to provide a supporting affidavit (i.e. extra evidence) to confirm they were separated during that time. This may also include supporting evidence from third parties e.g. friends or family, backing up the date of separation.
The date of separation may also become relevant to property settlement matters, and particularly where property or assets have been acquired or disposed of close to separation. This can become very complex, and the value of items is always at the time the property settlement is finalised, and you should obtain legal advice about these matters specific to your circumstances.
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.