Separation Under the Same Roof

With the decline of the stigma associated with divorce, the number of divorces within Australia has increased significantly in the last 20 years.

It doesn’t have to be a battle so read on.

There are many reasons which force divorcing couples to remain within the same residence. For some, it will be a battle as to who will stay in the marital home. For others, it will be a reluctance to move away before finalising financial and/or parenting matters through securing a Family Court Order or Binding Financial Agreement. In an ever-tightening economy, the most common issue has become having enough income to support two households.
How do you get through this situation, especially when you consider the person you fell in love with, set up a future with, and/or share children with is the last person you want to see every day?
So firstly, lets refer to the definition of “separation” which is covered under s49(2) of the Family Law Act (1975):
“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.”

Secondly, let’s look at the things you need to consider and plan for when you separate, particularly if you are separated under one-roof:

  1. How will our assets and liabilities be divided?
  2. How much do each of you receive by way of a regular income, and is there any need for a period of support from one spouse to the other to enable them to re-settle?
  3. What will the parenting arrangements for the children look like?
  4. Is it necessary for me to receive, or pay, Child Support?
  5. Do I need to make an Application for Divorce straight away?

Divorce
It is important to keep in mind that making an Application for Divorce may not necessarily be the most important item to tick off the list first. The rules require parties to be separated for a period of at least 12 months before the Court will consider your Application.
If you have lived under one roof during the 12 month period, then it is necessary to provide the Court with more information to prove you have actually been separated.

What does a One Roof-Separation look like?
The Court (supported by case law) views separation as something that can only occur where both spouses have a clear intention to separate.
It is also understood that relationships between parties can take many forms. It may be necessary to compare the circumstances of your relationship before and after the date of separation to establish a one-roof separation.
When making a finding that parties have separated, the Court will consider more traditional factors such as a physical separation (i.e., not living in the same house, or living in separate bedrooms), cessation of a sexual or romantic relationship, and a severing of finances.
Other factors that can be considered include the perception of your relationship by society and friends (e.g., whether you are still attending social events together with mutual friends), and whether you have actively behaved or recognised (or not) a marriage-like relationship in both public and private relationships (e.g., attending each other’s family events).Keep in mind that:

  • It is acceptable for separated parties under one roof to undertake household duties for the other;
  • In some cases, casual instances of sexual encounters between separated parties may not have the effect of interrupting a period of separation;
  • It is possible to reconcile for a period of up to three months and then separate (prior to the end of the three month period) without interrupting the calculation of a total period of separation.

Parenting Arrangements & Child Support
We suggest you try to keep negotiations regarding the parenting arrangements for your children entirely separate to ensure that you remain as child-focussed and objective as possible.
Often it is the case that financial disputes can negatively impact the ability for parties to remain focussed on the important task of good parenting.
If you are separated under one roof, then you may find that the parenting arrangements for the children won’t change much, or maybe just require some additional tweaking. A helpful tool in these circumstances may be a Parenting Plan, so you can map out how you plan to manage the children whilst separated under one roof and into the future. After all, it is important that your children have as much stability and certainty as possible to cope with what can be a difficult time.
Depending upon the financial arrangements for meeting the children’s expenses, it may or may not be necessary to address the issue of child support whilst you are living under one roof. That being said, there are cases where the Child Support Agency will implement an assessment for one party to pay the other child support if the finances of the parties are kept separate.

How to make a One-Roof Separation practical
This can be one of the hardest and volatile situations faced by separating couples.
If the situation allows for civil communication and negotiation it is best to lay down some ground rules that you can and are willing to abide by.

Here are just a few suggestions:

  • Who will be responsible for certain activities in the home, such as cooking, cleaning, shopping, taking the children to school and other activities?
  • How will the bills and financial responsibilities be taken care of?
  • Decide from the outset what you intend to tell family and friends. Often it is best to keep matters between you and your spouse as private as possible to reduce the chances of any agreement being spoiled.
  • If you have children, how are they are going to have to cope with this situation? Do they need they need additional support such as counselling? They are the only victims in this situation. Reassure them that they will be ok and that regardless of your marriage breakdown you will both be there for them.

Remember, that if you cannot live under the same roof without matters getting out of hand you should seek the advice of a legal expert in order to bring matters to a swift and peaceful resolution.

If you feel are unsafe, or if you (and/or your children) are being regularly exposed to Family Violence, then it is important that you seek legal advice immediately.

In extreme circumstances of violence, you should contact the Police for assistance.
Even if both of you decide to separate amicably, we strongly recommend that you seek advice from a reputable law firm such as Dimond Family Lawyers to ensure that the agreements you put in place today are clear and enforceable, whilst also putting in place any necessary protections for you and your family.

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