When applying to Court for divorce, you must satisfy the Court that you and your spouse have been living separately and apart for at least 12 months before the date of the application (and that there is no reasonable likelihood of the relationship reconciling).
Usually, parties are easily able to establish the 12 month separation when one of them has vacated the home that they shared with their spouse and has moved into, for example, temporary rental accommodation or has stayed with family or friends, for the full 12 month period.
As a result of the current COVID-19 issues, however, this may not be as easy to do. For example, a party may be experiencing a change in their income due to losing their employment rendering them unable to support themselves living in their own household, or as a result of the restrictions being unable to stay with family or friends (for example, there may be concerns about exposing particular household members who may be more at risk of contracting COVID-19 to other people). In light of these conditions, it is likely that many parties who separate in this period are likely to spend some, if not all, of their 12 month separation period under the same roof.
It is still possible for parties to rely on the period that they have been separated but still living under one roof to count towards the 12 month period of separation when they apply for the divorce. In doing so, however, in addition to the Application for Divorce form that you file at the Court, you will need to file an affidavit of yourself (and your spouse if you are filing a joint application) and include in the affidavit details that demonstrate to the Court that you and your spouse have lived separately and apart at the same property. You should also file an affidavit of an independent third party (such as a family friend or member of your family) that can provide evidence in support of this too.
Make Changes To Your Living Arrangements
So that you can satisfy the Court that you have been living separately and apart under the same roof, it is useful to know from the outset of the separation the types of changes that you will need to make to your living arrangements that will support this and put this into practice.
The kinds of changes that a Court will accept that prove there has been a change in the living arrangements from when you were living as a couple to where you are living separately and apart, and the details of which you would include in your affidavit, include the following:
- Occupying separate bedrooms;
- How you managed the parenting arrangements for any children you have together, whilst living under the same roof;
- A change in your social arrangements (e.g. not attending events/occasions that you may have otherwise attended together);
- Being responsible for your own household chores such as doing your own laundry, cooking, grocery shopping, shared cleaning arrangement;
- Separating your finances by, for example, having your own bank accounts and both contributing to household expenses such as rent/home loan, rates, utility accounts;
- Communicating your separation to friends, family and government departments such as Centrelink, Child Support Agency, ATO;
- The reasons as to why you continued to live in the same property.
Each case is decided on its own facts. It involves consideration and comparison of the circumstances of the parties living arrangement before and after separation. The above is not an exhaustive list of those considerations. They are just some examples to consider when putting a ‘separated under the one roof’ living arrangement into place.
Need Legal Advice?
BGM Family Lawyers is a specialist Family Law Firm based on the Gold Coast and we’ve helped hundreds of people like you get through this difficult time.
We can assist with all facets of separation and divorce such as Financial Issues, Spousal Maintenance, Parenting Arrangements, Child Support and Financial Agreements.
Call BGM Family Lawyers today on 1300 246 529 or book an appointment with one of our Family Law Specialists.
