What if we had to live together after we separated?
The law understands that sometimes following a separation, you and the other party may still have to share the same accommodation and one party may still perform some household services for the other, such as washing or ironing, for example, where it is necessary for the running of the home and the convenience of others who live there [see Family Law Act 1975 (Cth) s 49(2)].
This is called separation under one roof.
As long as you can prove that one or both of you left the marriage and you began living independently of each other, the 12 month separation period can start to run and will not stop merely because you continue or resume sharing the same accommodation.
As each marriage is different, the facts tending to prove a separation under one roof may vary from case to case. Normally it is necessary to provide evidence (in an affidavit) to prove that you do not share any of the usual activities of marriage, such as:
- sleeping together in the same bed or room
- shopping and eating meals together
- entertaining friends
- going out together
It will be easier to prove separation under one roof if:
- there were good reasons why you had to continue or resume sharing the same accommodation (such as for the sake of your children or one of you could not find or afford separate accommodation); and
- you do intend to live apart in the near future.
If you were to intend to continue living under one roof indefinitely, the Court might think there is a chance of you getting back together.
Is there anything we should do?
Yes. If you intend to rely on separation under one roof for the purposes of divorce, you should make sure that others know about it from the beginning of your separation, as the Court usually requires evidence (in an affidavit) from a neighbour, friend or relative (corroborative evidence) that there was a separation [see Pavey and Pavey (1976) 25 FLR 450].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.