Separation can be a very emotional and distressing experience for most couples.  While you have made the tough decision to go your separate ways, there are many other considerations that need to be taken into account such as: –

  • If there are children from the relationship, who do they live with?
  • How do you distribute funds held in joint bank accounts?
  • Who moves out of the home?

In some cases, couples may continue to live together after separation for weeks, months or even years. This is known as ‘separation under one roof’ and it will usually require the parties to provide some additional evidence about the date of separation or the fact of separation when finalising financial matters or divorce.

Why Is The Date of Separation Important?

The date of separation is important for both property settlement and divorce proceedings.

If you are in a de facto relationship, you have two years from the date of separation to make application to the Federal Circuit and Family Court of Australia for property settlement.  If you do not apply within this time frame, you may lose your right to apply for a property settlement (unless you have leave of the Court).

For couples who are married, if you want to apply for a divorce you are required to be separated for at least a period of 12 months before you make an application.

Whether you are in either situation above, the date of separation is important.

When couples separate and move from the home, there is a clear date of separation.  So what if you are living under the one roof?  How do you prove the date of separation?

Proof of Separation Under One Roof

The Court will have regard to various matters when determining whether separation has occurred where parties continue to live together under one roof. An Affidavit should be filed to provide evidence to the Court to support your position in relation to the date and fact of separation. The following are examples of information that could be included in the Affidavit:

  1. Changes to your financial circumstances – for example, following separation you may have closed your joint accounts and each have your own accounts.
  2. Changes to the social aspects of your relationship – following separation you may have told family and friends that you are no longer a couple. You may no longer attend social events together such as dinner with friends. Those friends may be able to give supporting evidence that you no longer hold yourselves out as a couple.
  3. Sleeping arrangements – you may have moved into different bedrooms and can give evidence about this and about the cessation of a sexual relationship.
  4. Changes to the nature of your household – you may be able to give evidence about the change to household arrangements such no longer cooking or cleaning for your former partner or having new arrangements about who will care for the children and when.
  5. New relationships – one of the parties to the relationship may have repartnered.
  6. Notification to Authorities – following separation you may have informed various government authorities such as Centrelink or the Child Support Agency of the separation and be able to provide evidence of same.
  7. Preparation of Tax Returns – now that you have separated you may be able to provide evidence that you no longer declare the other party as a spouse in your Tax Return.

Not all of the points above need to be present to prove to the Court that you have separated but you should inlcude as many as possible in your Affidavit and, where possible, provide Affidavits from friends or family who can provide evidence of their observations about the change to your position.

And don’t forget to let the Court know why you continue to live separately and apart under the one roof!

What Should I Do If I Need Help?

If you need to talk to someone about separation, divorce or property settlement, you should contact our office today to speak with one of our solicitors.