Is separation still possible if a couple still lives in the same residence?

by The FindLaw Team

What evidence is needed to prove separation under one roof?

When parties to a marriage have separated, but are still living together in the same residence: does the law require that a former couple prove an irretrievable breakdown of the marriage by having to separate physically from one another for divorce to be granted? The term ‘separated’ can be a misnomer in that there is no legal requirement for actual physical separation, but rather separation denotes a departure of the marital state of affairs, rather than a physical departure from the residence. However, if a party to the marriage wants to include the time period of separation under one roof towards the mandatory 12 month separation period in order to gain permission to divorce, there must be certain requirements that need to be met before the courts can do so.

What does separation under one roof involve?

The Family Law Act 1975 (the Act) requires that anyone wishing to divorce must prove an irretrievable breakdown of a marriage, and must have been separated for at least 12 months. Again, the separation does not have to be physical, but if a party, or both parties, want to include the 12 month period as evidence of an irretrievable breakdown of a marriage, the court must be satisfied that the relationship has ended, and there is no chance for reconciliation.

Some of the actions that a person can take to demonstrate that separation under one roof has occurred may include:

  • evidence specifying the day the nature of the marriage had changed
  • collecting evidence of a change in the nature of the marriage on the date of the irretrievable breakdown of the relationship.

What evidence is needed to prove separation under one roof?

In order to prove separation under one roof, some of the evidence that can be used may include:

  • moving into separate bedrooms and informing another person of the change in the sleeping arrangements
  • informing friends and family that a separation has occurred
  • recording the separation on a document and preferably having both parties sign and date the document
  • changing the will
  • informing outside entities of the change in the relationship, which may include banks or insurance companies.

Is there a requirement that one of the parties must eventually leave to prove separation?

There is no requirement that either person has to leave the place of residence – even in the event of separation. In fact all parties may live in the former family home for as long as they choose without any legal requirement to be ‘separate’.

Furthermore, there may be instances where one of the parties may own the property and want the other party to leave, so they may seek a sole occupancy order. However, the courts will generally only issue a sole occupancy order in instances where there is actual violence, or a perceived fear of violence towards the other person or any children.

If a person moves out of the property, but wants to come back: can they?

Although there is a right to reside in the property for as long as each person chooses, however, once one of the parties has moved out, there may be legal difficulties if they change their mind and want to move back into the residence. The actions of moving out all personal possessions, and physically leaving may grant the other party sole possession, which will usually bestow tenancy rights on the party who has chosen to stay in the former marital home.

Once person has gained the right of tenancy, they then can grant or deny permission for another person to enter the home – which includes the former spouse. It’s important to be aware that in such a scenario, even if the person who has left has joint title with their former partner on the home, or even if they are the sole name on the title to the property, they still may not have the right to return to the residence once tenancy rights are obtained by the other party.

If you are experiencing any family law issues involving separation or divorce, always seek the appropriate legal assistance.


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