Meaning of separation as per Part VI of Family Law Act 1975 49 Meaning of separation
- The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
- The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
This information is for separated parties applying for a divorce who lived in the same home during part or all of the required 12 month separation period. We will need to file relevant evidentiary documents with the Court.
What is separation under the one roof?
Separation under one roof is when a husband and wife separate but continue to live in the same home. It may be for a few days, weeks, months or years following separation.
If you and your spouse lived in the same home during part or all of the required 12 months separation period, you need to provide extra information to the Court. You need this information before you can apply for a divorce.
EXAMPLE ONE
Separated for 14 months
Lived in the same home for 5 months after separation
Three of the 12 months separation lived in same home
Must provide extra information to the Court
EXAMPLE TWO
Separated for 5 years
Lived in the same home for 3 years after separation
Past 2 years lived in different homes
Do not need to provide extra information to the Court
What documents do I need to file?
If separation under one roof applies to your situation, you need to support your divorce application with an affidavit.
Q What is an affidavit?
A An affidavit is a written statement prepared by a party or witness. It is the main way you present evidence (facts of the case) to the Court. You must swear or affirm the affidavit before a person authorised to witness affidavits (ie, eg; as lawyers we can prepare and witness affidavits).
- If you are applying for a divorce as a sole applicant, you must file an affidavit and you should also file an affidavit by an independent person; such as, a family member, friend or neighbour.
- If you and your spouse are applying together, you must each file a separate affidavit.
NOTE:The affidavit by the independent person should contain as much information as they know about the separation
What do I need to prove?
In your affidavit, you need to prove that there has been a change in the marriage, gradual or sudden, showing you and your spouse have separated. You will need to explain any:
- change in sleeping arrangements
- reduction in shared activities or family outings
- decline in performing household duties for each other
- division of finances; for example, separate bank accounts, and
- any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation.
The affidavit should also explain:
- Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation.
- Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof.
- What government departments you have advised of your separation if you receive a government benefit; for example, Centrelink or the Child Support Agency. If correspondence has been received from these departments about your separation, attach a copy to your affidavit.
Attending court?
If you have made a sole application and there is a child of the marriage under 18 years you must attend the court hearing. In other circumstances if the Court requires more information, it will adjourn the case and direct you to file additional material or to attend the court hearing.
We have sourced information from the relevant statutory instruments, from much legal literature for this article including from the Family Law Act 1975 – http://www.comlaw.gov.au, http://www.familylawcourts.gov.au.