Separated – but in the same house?
The Family Law Act 1975 (Cth) governs the legal requirements for a divorce in Australia. Although it seeks to minimise the number of obstacles faced by married or de facto couples intending to separate, the complexity of the law itself can be a barrier faced by individuals in the community.
One such area of confusion is the legal requirement for separation to obtain a divorce. Where no children are involved, a divorce order is only granted where the Court considers there is an irretrievable breakdown of the marriage. This is proven by demonstrating to the Court that you and your partner separated and lived separately for a continuous 12-month period before filing an application for divorce.
However, it is often the case that couples are not in a financial position, or simply do not want, to move from their primary residence and to different accommodation while undergoing the separation process. Further complexities arise where children under the age of 18 are involved, as a divorce will not be granted unless there are proper arrangements made for them.
What many do not realise is that the meaning of separation under section 49 of the Family Law Act 1975 (Cth) does account for the circumstance where parties to a marriage have continued to reside in the same residence since separation. The focus of the Court’s consideration of your separation is that you have ‘lived separately and apart’. This can be evidenced by further explaining your specific circumstances to the court in an affidavit (a sworn written document), where you would outline key facts such as:
- the date of separation and how it was established;
- the reasons for why either party could not reside somewhere else;
- the practical changes to your relationship after separation, including;
- changed sleeping arrangements;
- division/separation of finances; and/or
- the plans for either parties’ place of residence after granting of the divorce.
Your affidavit addressing matters such as those listed above, will be filed alongside your divorce application to support your request to the Court. If you are independently applying for a divorce, you must file the affidavit yourself and would also benefit filing an affidavit by an independent person who knows you. If you and your partner are both applying for a divorce, an affidavit must be filed separately by each of you.
At Freedman & Gopalan Solicitors, we understand that every couple and family face unique and varying personal circumstances which may complicate how the Family Law Act 1975 (Cth) applies to you.
If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.