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Separation Under One Roof: A Legal Perspective

The decision to part ways with your partner is not one taken lightly. The process can be fraught with social, financial, and emotional challenges. In Australia, particularly due to the high cost of living, it has become increasingly common for couples to separate while continuing to live together in the same household. This article will delve into the concept of “separation under one roof,” explore the current trends surrounding this approach in New South Wales (NSW), and shed light on its legal implications in the realm of Family Law.

What Is Separation Under One Roof?

Separation in the context of a relationship occurs when one or both parties permanently or indefinitely terminate their union. Separation under one roof, on the other hand, refers to the situation where a former couple continues to reside in the same dwelling after their relationship has ended.

This unique form of cohabitation is acknowledged under section 49(2) of the Family Law Act. It permits parties to live separately “notwithstanding that (the parties) have continued to reside in the same residence.” However, it’s essential for the parties to close any joint bank accounts and dissolve legal obligations in order to prove that the separation extends beyond just physical circumstances.

In determining separation under one roof, the courts may consider a range of factors, including:

1. Separating finances and closing joint accounts.

2. Sleeping separately while sharing the same residence.

3. Informing friends and family about the separation.

4. Considering whether the parties are still engaging in an intimate relationship.

5. Evaluating the nature of the commitment within the relationship.

Why Are More Couples Opting for Separation Under One Roof?

The rising cost of living and housing, coupled with a rental crisis, has driven more couples to consider separation under one roof. Other reasons include managing childcare arrangements and the desire to avoid conflicts that often arise when one party moves out. This arrangement offers an alternative to the burdensome process of relocating after a divorce.

It’s important to note that the choice to separate while living together is not limited to any particular demographic. However, lower socio-economic status couples are more likely to persist with this living arrangement throughout the divorce application process due to financial constraints.

Legal Challenges and Implications of Separation Under One Roof

Proving that a marriage has irretrievably broken down is a prerequisite for filing for divorce in Australia (as per section 48(1) of the Act). Typically, this is established by both parties living separately for 12 months immediately preceding the divorce application.

In cases of separation under the same roof, it can be more challenging to demonstrate an irretrievable breakdown of the marriage. This is because lines of communication remain open, and there may still be shared financial assets.

As stated by Judge Nettlefield in the case of Morris v Morris:

“If all the essential qualities of a common life are gone, the parties can be said to have separated. And that can be asserted, and asserted accurately, notwithstanding that difficulties in respect of accommodation, or financial difficulties, leave them closer together in space than they would be if those difficulties did not exist.”

To prove an irretrievable breakdown of marriage when still living with a former partner, couples must document the exact date of separation and any periods of cohabitation since the separation. The court also requires two affidavits to confirm the separation under the same roof, with the contents of the affidavits varying depending on the nature of the divorce application.

Ultimately, separation under one roof provides a practical alternative for couples who remain amicable and wish to avoid the socio-financial pressures of moving out separately or with children. While legally recognized, this arrangement comes with challenges in terms of proving the separation and the emotional weight of continuing to share a domestic space with a former partner.

How We Can Assist

If you find yourself in a situation of separation under one roof and need guidance or legal advice regarding your unique circumstances, please do not hesitate to reach out to our experienced Family Law team at Cleofe Parsons Legal. We are here to support you through this challenging process and provide the necessary legal experience to navigate the complexities of Family Law.

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