When spouses separate, it is not always financially viable for them to live apart. Some continue ‘living together’. Here we talk about being ‘separated under the one roof’.
How is ‘being separated’ defined?
Under family law, spouses 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 husband or wife misunderstands or ignores the communication.
What is ‘separation under the one roof’?
This phrase is used to describe a separated couple continuing to live in the one home.
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.
However, the Family Law Act makes it clear that 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. You do not have to be divorced to do this—these matters can be dealt with after you separate. However, it is important to remember that time limits apply for property settlements after divorce.