Some separating couples discover that whilst they do not want to live together, it is not financially viable for them to live apart. In this column we address some common questions about separation in these circumstances.
Are we separated?
Under family law, couples are separated if at least one party has formed the intention to separate, has acted on that intention and has communicated this to the other party. This is so even if the other party misunderstands or ignores the communication.
Can we still be separated if we continue to live in the same house?
Yes, you can be separated and still live in the same home. The phrase used to describe these circumstances is “separated under the one roof”.
Can I still apply for a divorce in this situation?
Yes. The only ground for divorce is that ‘the marriage has broken down irretrievably’. Usually, this is proven by the parties having been living ‘separately and apart’ for a total period of not less than 12 months before filing for divorce.
The Family Law Act provides for circumstances where couples may have separated even if they have continued to live under the same roof. In such a case, the person applying for a divorce must confirm that the couple has lived separately under the one roof.
Can we still finalise property and parenting matters?
Yes – these matters can be dealt with after you separate. However, it is important to remember that time limits apply for property settlements. For divorcing spouses, the time limit is twelve months after the divorce. For de facto couples the time limit is two years from the date of separation.