A common family law question we are asked is; “If we’ve decided to separate does one of us need to move out of the family home in order for the 12 month separation period to commence?”
The simple answer is, no.
Under the Family Law Act 1975, for married couples the only ground for divorce is that a marriage has irretrievably broken down. This is established by the Court through evidence that the parties have lived ‘separate and apart’ for a period of 12 months. However, it must be noted, that to live ‘separate and apart’ does not mean there needs to be actual physical separation.
There are many reasons why separated couples decide to stay living together; even for a few days, weeks, months or longer, when their relationship has ended. Financial strain of one partner moving out, joint ownership of the family home or not wanting to disrupt children’s routines are often common reason for many separated couples to continue living under the one roof after separation.
If a separated couple have lived in the same home during part or all of the required minimum 12 month separation period, they need to provide additional details to the Court before they can apply for a divorce
Related Article: How Long Does It Take To Get Divorced In Australia
Separated couples living under the one roof will need to provide an affidavit when apply for divorce.
An affidavit is a written statement made by one of the parties in the relationship, or by an independent person who can provide evidence about the breakdown of the relationship. For an affidavit to be valid, it must be authorised by a lawyer or a Justice of the Peace.
If the parties are making a joint application, each must file a separate affidavit.
The affidavit needs to present evidence and facts that prove the marriage has ended, this will include:
It is also necessary to provide good reasons why the separated parties continued to live under the one roof after commencing their separation.
Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email [email protected]