FamLaw: The ins and outs of separation under one roof

One of the requirements of divorce is that parties have separated. However, there are practical difficulties with this; who moves out of the family home and who is allowed to stay? What if the parties cannot afford to find new accommodation? Is divorce reserved for couples with the money to afford two properties? Well, the answer according to Family Law legislation is a resounding NO. We would have real problems if Family Law treated parties so inequitably.

For this reason, Family Law legislation provides that parties may be ‘separated’ for the purposes of seeking a divorce or property settlement whilst still living under the same roof and rendering household services, such as sharing cleaning, laundry and cooking. This is acceptable as long as the parties’ matrimonial relationship has been severed and they are no longer living as husband and wife. Some things which the Court may look towards to establish separation include:

• Whether the parties sleep in separate beds
• The extent of communication between the parties
• The extent to which the parties socialise together
• The extent to which parties have untangled their lives

A note about children…

If parties continue to live together for the sake of the children, this may or may not impact on their ability to claim separation under one roof. It depends on whether the relationship could be characterised as living as husband and wife for the children or simply co-existing in the same space as mother and father without any personal relationship between the two parties. This is a grey area in the law.

A warning about misuse of this provision…

The Courts are aware that parties may claim to be separated and living under one roof purely for the sake of a speedy divorce. However, a consequence of this is that corroboration MAY be required to ensure parties truly are separated.

If you have questions or concerns about your separation, divorce and family law in NSW please do not hesitate to contact us.

This article is provided to the reader for general information. It is not legal advice. It was written by Andrea Spencer & Emily Graham and edited by James Frank. 

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