Divorce or separation is a sensitive and challenging time in anyone’s life – especially if you’re still living under the same roof. Emotions and stress can run high, so we highly recommend seeking legal advice early on to ensure confidence in your decision-making.
Our Separation Lawyers in Brisbane can provide clarity and help you navigate the complexities of divorce or separation. Continue reading to learn more.
What is meant by separation under one roof?
In Australia, the only acceptable reason for a divorce is if the “…marriage has broken down irretrievably”. For a divorce to be granted, the court must agree that both parties lived separately for at least 12 months before they applied for the divorce.
If you and your ex-partner have no choice but to continue living together after splitting up, this is defined as separation under the same roof.
How does this separation agreement work?
Separation under one roof is when two spouses end their relationship but cannot change their living arrangements. Ex-partners will continue living together after separation, usually due to parenting or financial difficulties. For example, you or your partner don’t earn enough income to rent independently.
Ex-partners living under one roof must provide significant evidence that they do not act or behave like a couple, despite living together, to The Federal Circuit and Family Court of Australia (FCFCOA).
This proof of separation is crucial for the following reasons:
- You must be officially separated for at least 12 months to apply for a divorce.
- If you both own your house, the property settlement agreement will need the date of separation to determine your entitlements.
- It may affect your government benefits (if you receive them)
Can I apply a divorce if we’re separated but living under one roof?
If you and your ex-spouse have no choice but to continue living together during your separation, it is possible to still apply for a divorce. Your Application for Divorce must include:
- Two affidavits – written statements explaining the nature of your relationship before and after separation, your current living situation and plans for the future.
- Another affidavit from a trusted third-party witness to support your statement.
This can be any adult friend, family member, co-worker or another important person in your life that can describe what they witnessed throughout your separation.
When you are separated under the same roof, the court will consider the following factors when assessing your application:
- Financial aspects of the relationship.
- Layout and nature of the household.
- Social elements of the relationship.
- If there is a sexual relationship present.
- Nature of the overall commitment.
How will the finances and bills be divided?
If you and your ex-spouse have a financial separation agreement (a prenup), it will state how assets are meant to be divided in a relationship breakdown. As each situation is unique though, we recommend speaking with a professional for tailored advice and possible solutions.
For example, if you have broken up with your partner but are living in the same home, you most likely have a joint bank account for electricity and utility bills. Or perhaps you or your ex-spouse pay these bills but now want to share the costs.
You may choose to keep using the same joint account for bills, but organise to transfer fixed amounts to each other so your expenses are clearly monitored.
Again, your ideal solution will vary depending on your circumstances. Contact our experienced separation lawyers in Brisbane for clarity and peace of mind today.
What about separation and property settlement agreements
A property settlement is the legal division of assets between spouses following a marriage or de facto relationship breakdown – including separation under the one roof.
In Australia, you can finalise a property settlement and relevant maintenance issues after separation through a Financial Agreement or Court Order. However, you must commence court proceedings within 12 months of the Divorce Order taking effect.
Each case is unique and requires different levels of analysis depending on the asset pool and financial arrangement complexity during the relationship. To ensure you retain your rightful assets and secure a financially beneficial future post-separation, we strongly suggest you engage with:
- trusted accountants;
- financial planners;
- family tax experts and;
- separation lawyers before deciding to preserve your assets.
Our experience – Your advantage
At Waller Family Lawyers, we understand that each relationship and situation is unique. Our experienced Brisbane separation lawyers will treat you with respect and care at every step of your journey, providing compassionate, transparent and professional legal advice to secure the most beneficial outcome.
Our no-obligation initial consultations have zero time limits and affordable fixed fees, so you can relax knowing you’re making the right choice. Secure your future with Waller Family Lawyers today.