Couples often wonder if it is possible to be legally separated but still living in the same house.
It’s a common question and the Simple answer is yes – you can be legally separated, while still residing in the family home.
In legal speak this is known as being “separated under the one roof”.
Separating under the one roof is a practical option for many couples. It’s a decision you many need to make for
- financial reasons;
- the well-being of children; or
- until the property settlement has been decided.
Australian legislation has considered all these scenarios and recognises that a couple can be legally “separated”, even though they may still be live in the same residence.
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It all comes down to the intention of the parties:
One or both of the parties must intend to sever the relationship, and the parties need to physically separate by living separately and apart.
If you’re both living in the same premises, physically separating usually means moving into separate bedrooms and disentangling finances, for example, by closing joint bank accounts.
Arguments can arise if the date of separation is disputed as has been the case in several family court matters.
Couples generally experience difficulties over a long period of time, and it’s often hard to determine at what particular point they actually separated.
In many instances couples will have had discussions about separating, but take some time before they actually arrive at the point of separation.
Even in the course of those discussions one partner may say that the relationship is over, but not act on that statement for some time.
For there to be a separation, one party needs to communicate to the other that the relationship is over and they need to act in a way that confirms the intention.
In cases where a party moves out of the matrimonial home it may be said that that move is both communicated and acted upon depending on the circumstances.
It is highly unlikely that you’ll ever have to “prove” the date of separation to a court of law, but you may have to supply a separation date to agencies such as Centrelink and the Child Support Office (if applicable).
You will also need a date of separation if you decide to file for divorce. You can only apply for a divorce if you have been separated for at least 12 months. When you lodge your application, an officer of the Court will check it to ensure you have met this requirement.
For these reasons, it’s a good idea to record the actual date that you formed the intention to separate under the one roof and acted on that intention to separate by physically separating (ie. moving to separate bedrooms and separating your financial ties).
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