Can I live with my partner if we are divorcing?

The simple answer is yes provided that the marriage has broken down irretrievably.

Irretrievable breakdown

An irretrievable breakdown of marriage simply means that there is no reasonable likelihood that you and your spouse will get back together. To satisfy the Court that the marriage has broken down irretrievably, you and your spouse must show that you have been separated for at least 12 months and one day. This is done by filing an Affidavit (setting out your evidence to support your separation) together with your Application for Divorce.

What is an Affidavit?

An Affidavit is a written statement and is the main way you present evidence/facts of your case to the Court. You must swear or affirm your Affidavit before a person authorised to witness Affidavits such as a Lawyer or Justice of the Peace. There are rules about what should and should not be included in an Affidavit, so it is best to consult an experienced Family Lawyer if you are unsure to avoid unnecessary costs or delays.

What does the Court want to know?

The Court will want to know about mat­ters such as:

• Why you and your spouse have remained liv­ing under one roof.
• What your liv­ing arrange­ments are while under one roof i.e. Where do you each sleep? What is the extent of communication between you both? Do you still socialise together and to what extent? How tangled are your lives?
• Whether you have advised any gov­ern­ment depart­ments of your sep­a­ra­tion.

Who must file an Affidavit?

If you are filing a Sole Application for Divorce (applying for a divorce on your own), you must file an Affidavit yourself. You will also need to file an Affidavit by an independent person (i.e. a family member or friend).

If you are filing a Joint Application for Divorce (applying together), you will both be required to file an Affidavit separately. If it is not possible for one of you to file an Affidavit, then an Affidavit by an independent person should be filed.

There are dif­fer­ent oblig­a­tions in each case par­tic­u­lar­ly around ser­vice so be sure to obtain legal advice if you are unsure.

Property Settlement

A divorce does not bar your spouse from accessing your property or the assets you acquire post separation therefore, it is important that you resolve how the matrimonial assets will be divided as soon as possible ideally through a property settlement encompassed in Orders.

In fact, a property settlement can occur anytime after separation regardless of whether you are divorced or not, so it is best to try and resolve this sooner rather than later to avoid complications particularly around assets acquired post separation.

You have 12 months from the date the Divorce Order comes into effect to commence property proceedings or make an application for Property Orders.

When mak­ing prop­er­ty orders, the Court looks at the prop­er­ty as at the date of the hear­ing not the date of separation.

If you have further questions, please contact us at frank@franklaw.com.au. 

This is not legal advice.