Part 1 of Amanda Abeyratne’s divorce series. Amanda can provide advice on the likelihood of an Application for Divorce being granted if you are separated under the same roof.
Separated parties can apply for a divorce if they have been separated from their marriage for at least 12 months. This may include if they have been living separately and apart under the same roof.
It is common for parties to continue living together even after they separate because of financial reasons and/or staying for the kids.
When parties separate under the same roof, the Court will require additional supporting evidence to demonstrate that, despite continuing to live in the same household, the parties have been living separate lives.
In considering this, the Court will have regard to the following:
- Whether either party has notified family and/or friends of their separation;
- Sleeping arrangements;
- Whether the parties have been intimate with each other;
- If either party has reduced performing household duties for the other;
- The parties attendance at family and/or friends’ functions;
- Whether the parties attend activities and/or outings together;
- If the parties shared joint bank accounts during the marriage, whether either party separated their finances;
- The reason the parties continued to live in the same household after separation;
- If the parties have children under 18 years of age, the arrangements made in relation to their care; and
- If either party receives a government benefit and whether they informed the government department of their separation.
Applying for a Divorce
If separated under the same roof, an Application for Divorce will need to be filed, together with two supporting affidavits. The first affidavit will need to be of the applicant themselves and the second will need to be a person known to both parties, such as a relative or friend.
The affidavit will need to detail the above dot points to consider whether the parties are in fact separated, despite continuing to live in the same household.
A witness can be anyone who is over the age of 18, who is a friend, family member or someone who has known the parties during their marriage and after separation. The witness will need to provide evidence of their observations of how the parties’ relationship has changed since separation.
