Separated but Living Under the One Roof: Together but Apart

September 26, 2019 / Family Law

You might be surprised that figures from the Department of Human Services in March 2017 show that some 38,629 Australians are registered with Centrelink under a code “separated under the one roof”.

This means that a person is registered as a single person, although they are living in the same residence with the former spouse/defacto partner from whom they are separated. This can occur when couples are awaiting a divorce and/or a financial settlement.

Given its prevalence, it is not surprising that such an arrangement is recognised in the Family Law Act 1975 (Cth) (“FLA“). Section 49(2) of the FLA says:

“The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding they have continued to reside in the same residence but either party has rendered some household services to the other.”

There are a number of obvious reasons why separated couples may agree to live in the same residence. House prices is one reason as it is difficult to financially support two homes, particularly where there are delays in the Courts in finalising financial settlements. Additionally, couples may consider that it is better for the children. However, there is a difference between couples staying together for the sake of the children and where one parent remains in the matrimonial home for the sake of the children. In the first situation, the marriage is intact but in the second one party remains, even though the couple consider the marriage is over.

Can it be this simple – just to assert that the marriage is over but, for various reasons, live under the one roof? Unsurprisingly, it is not simple. It is not sufficient to just assert in Court documents that the marriage is over. Where there is no visible physical separation, the intention to sever the marital relationship has to be carried out clearly and unmistakeably to convince a Court that separation has happened.

What does the law mean by “separated”?

When parties continue to live under the same roof, regard has to be had to a number of elements to establish whether or not the ‘consortium vitae’, that is, the matrimonial relationship, has broken down.

The consortium vitae consists of a number of matters which go to make up a matrimonial relationship such as sexual relations, dwelling under the same roof, enjoying each other’s society, protection and support and recognition of them as a couple in public and private.

In a 1976 case the Family Court said about this issue:

“The most important single component of the marital relationship … all other components are secondary to it is the place where the parties can together find shelter and protection, where they can procreate their children and rear them in such security and comfort as their circumstances dictate where they can store, use and protect their property, entertain their friends, relax together and enjoy each other’s society and support each other in times of sickness or disaster.”

In another 1976 case, the Full Court of the Family Court stated:

“In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases therefore require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the Court about this by explaining why the parties continue to live under the one roof and by showing that there has been a change in the relationship gradual or sudden constituting a separation.”

In a sense, what is required is a comparison of the workings of the marital relationship and the current circumstances.

Situations where separated but living under the one roof can happen

An application for divorce has to be based on the grounds that the marriage has broken down irretrievably and that is usually proven if the parties have separated and lived separately and apart from a continuous period of not less than 12 months immediately preceding the date of the application seeking the divorce.

Obtaining a divorce in Australia today is a relatively simple matter. Most people opt for completing documents online on the Family Court’s website. However, in addition to establishing a date of separation, if the parties remain separate but are living under the one roof, additional evidence has to be provided which increases the costs of divorce.

An affidavit from the party commencing the divorce proceedings and a corroborating affidavit of a third party are usually required. If the divorce application is made jointly, then both parties have to file an affidavit. This is because the Courts are alert to the fact that parties may try to avoid the “living separately and apart for a continuous period of not less than 12 months” requirement by asserting that they have been separated but living under the one roof for 12 months when, in fact, this has not been the case.

Similarly, if parties are seeking a financial split of property/assets accumulated during the relationship, the date of separation needs to be determined if the parties have separated but are living under the one roof.

How to prove you are separated but living under the one roof

While the evidence that needs to be put before the Court in an affidavit and by documents is not finite, the matters to be addressed include the following:

1. the date when it is asserted that the separation took place;
2. evidence that the separation or intention to sever the relationship was communicated to the other party either by words or conduct, such as delivering a dated written document to the spouse or partner stating that separation has occurred;
3. reasons as to why the parties still live under the same roof but consider themselves separated;
4. the accommodation arrangements that have been organised for once a divorce is granted and a financial settlement has been reached;
5. that sleeping arrangements have changed with parties sleeping in separate bedrooms;
6. that there has been a separation of financial interests. For example:
   • that joint bank accounts have been closed;
   • there have been changes to beneficiaries for superannuation and life insurance. For example, the husband or wife may have completed a Binding Death Nomination with their superannuation fund to allow, in the event of a death, for the superannuation to be paid to the estate rather than to the former spouse/partner;
   • that each person is truly responsible for their own financial needs and they have utilised their income on an individual basis to demonstrate a lack of common financial goals; and
   • there have been appropriate notifications to Centrelink and other Government agencies, such as the Child Support Agency;
7. that communal space is shared differently. For example:
   • whether each party is occupying space at different times;
   • how and in what way domestic chores have been split between the parties;
   • whether each party does their own shopping, cooking, cleaning and laundry;
   • that you both no longer eat meals together; and
   • how bills are being paid;
8. cessation of sexual relationship. Occasional sexual activity between the couple is not necessarily definitive to decide whether parties are separated but living under the one roof, but it is a factor to be considered;
9. that the couple have announced that they have separated to family and friends, which can be demonstrated by:
   • not spending time together on special occasions such as birthdays, Easter and Christmas and social occasions;
   • not attending each other’s work functions;
   • family outings no longer occurring; and
10. whether either of the parties have formed a new relationship;
11. that the parties no longer give gifts to each other for birthdays and Christmas;
12. that the parties no longer use the same computer and have different telephone numbers and email addresses; and
13. that the parties have asked the school that information and notifications be sent to each of them separately.

If you can put evidence before the Court from an independent person such as a counsellor, doctor or social worker that you have separated, this will be given more weight by the Court than affidavits from friends and family members.

Summary

For couples who want to separate but live under the one roof until divorcing, dividing assets and liabilities between them, it is not as simple as just living under the same roof. A Court has to be satisfied that the parties are actually separated, even though they are physically together and that can only be achieved by satisfying the Court that the marital relationship has significantly changed.

Couples will need to satisfy a Court that they truly live independently and there is no financial interdependence.

Unless these matters can be proved satisfactorily to the Court, a divorce may be refused and a trial may be ordered where evidence needs to be put before the Court which is an additional financial expense. Similarly, a property settlement may also be refused if the Court is not satisfied that the parties’ marriage is over. The legal costs of these applications are increased because of the nature and amount of evidence that needs to be put before the Court.

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This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.