When separating from your partner, getting the facts on what you need to know gives you a clear direction on what to do next.
Separation can take place by one or both parties moving out of the main residence.
However, if that is not convenient or possible, you can separate “under the one roof”.
The reasons why a couple may choose to separate “under the one roof” are many and varied. Usually it is done for financial reasons and as a short term arrangement until the family home is sold or finances are re-arranged, giving the parties the funds to move forward.
Regardless of where the parties are living, the key issue is that one or both of the parties intends to sever the relationship and that the parties physically separated, and thereafter lived separately and apart. If a couple is still residing under the one roof, this may involve moving into separate bedrooms and severing financial ties.
In In the Marriage of Todd (No. 2)[5] Watson J said that separation can only occur where one or both spouses:
form the intention to sever, or not to resume, the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.
Separating under the one roof
The case of Wilson and Wilson [2010] is unusual in that the wife opposed the husband’s divorce application, on the grounds that they had not been separated for at least 12 months.
Whilst it is extremely rare for someone to have to prove separation under the one roof in these types of proceedings, the Magistrate provided some useful clarification about it:
When parties have separated under the one roof, it is often difficult to determine at what particular point they separated, especially if they have been experiencing marital difficulties for a lengthy period of time. In many instances, married couples will have had discussions about separating, but take some time before they actually arrive at the point of separation. Indeed in the course of those discussions a party may even say the marriage is over, but not act on that statement for some time.
For there to be a separation there needs to be not only:-
- the communication of the fact from one party to the other; but also
- some action to confirm that intention.
In cases where a party moves out of the matrimonial home it may be said that the move is both communication of that party’s intention to separate, as well as the affirmative action to confirm that intention, depending on the circumstances.
When the parties remain under the one roof however the court would need to be satisfied that:
- there has been an intention to separate by at least one person followed by a communication ofthat intention;
- with some form of action following the communication to confirm the intention [ie. moving into a separate bedroom etc].
Federal Magistrate Maguire in Aitken & Deakin held the view that the communication needed to be unambiguous and unconditional.
For most couples, this will not be an issue, and you will not need to prove separation, to the extent of the Court proceedings in Wilson and Wilson.
You may need to inform certain government departments, such as Centrelink, the Child Support Office, and, if you later decide to file for divorce, the Family Court of the separation. These organisations may require documentary proof in the form of an affidavit or statutory declaration, signed by one of the parties.
Are there time limits to make a claim if separating?
A married couple can only apply for divorce after they have been separated for at least 12 months.
When separating property, married couples have 12 months from the date of their divorce to apply to the court for property orders. De facto couples have 24 months from the date of their separation to apply to the Court for property orders.
If parties do not comply with their statutory time limits they are required to seek the court’s permission to apply out of time. This is not always granted.
Alternatively, where a couple agrees on how their property and financial resources should be divided, they can use a binding financial agreement as an alternative to court proceedings. There is no time limit to make a financial agreement.
