Separation Under One Roof After a Relationship Breakdown

After separation, one of the first things to work out is how to unravel combined finances and figure out where you each will live moving forward. With rents and mortgage repayments being a huge part of the weekly budget for Tasmanian couples, it’s common for people to continue to live together in the same residence for some time after they initially separate.

With ‘separation under one roof’ becoming increasingly common, we often get asked by clients how such as arrangement will affect the parties from a legal point of view. In this article, we will explore how separation under one roof is viewed in Australia from a legal perspective and how the Family Court generally approaches orders where couples are separated but still living in the same home.

What is separation under one roof?

Even when a couple remains living together, they may still be considered legally separated for the purposes of family law.

Separation under one roof occurs when a couple separates but continues to live together in the same residence. This can happen for a variety of reasons, most commonly financial constraints or the need to keep consistency for children. Sometimes people have to wait until they have organised the sale of the family home or until their lease has finished before they can afford to move out and go their separate ways.

How do I know if we are considered separated under one roof?

The Family Court of Australia recognizes that separation under one roof can be a challenging situation for parties to navigate. The court takes a holistic approach to determining whether a couple is separated, taking into account factors such as:

  • Whether the parties have physically separated their lives, such as by ceasing a physical relationship and separating household tasks;
  • Whether the parties have communicated their intention to separate to friends and family who know they are no longer a couple;
  • Whether the parties have made arrangements for their finances, such as separate bank accounts and credit cards;
  • Whether the parties have made arrangements for the care of their children, such as agreeing on parenting arrangements, payment of expenses for the children and child support.

If there is a dispute about when you separated, the court will consider that couples particular circumstances as a whole rather than just looking at any one factor in isolation to determine when the couple separated or sometimes, whether they have actually separated at all.

How does being separation under one roof impact family law matters?

If a couple is considered to be separated for the purposes of family law, this can have significant implications for the resolution of family law matters such as property settlements and parenting arrangements. For example, you must be separated in order to commence proceedings for a property settlement or parenting orders.

If you were in a de facto relationship, you have 2 years from the date of separation to commence financial proceedings in the Court to seek orders dividing assets and liabilities of the relationship. If there is a dispute as to the separation date and you apply out of time then you may find yourself having to convince the Court that it should allow you to pursue those orders outside of the allowed time.

Similarly, you can only apply for a divorce following the breakdown of a marriage after you have been separated for 12 months.

Understanding how to prove that you are separated if you are still living together is important so that you can prove when you separated. Further, the date of separation may have some impact on your application for property orders if there are significant changes to the asset pool after separation.

What should parties do if they are separating under one roof?

If you are separating under one roof, it is important to seek legal advice to understand your rights and obligations. You should consider obtaining a formal separation agreement that sets out the arrangements for property division and parenting. This can help to avoid disputes down the line and provide certainty for all parties involved.

Separation under one roof is a complex issue that requires careful consideration of the circumstances of your particular relationship. The Family Court of Australia takes a holistic approach to determining whether a couple is separated and parties should seek legal advice to understand their rights and obligations.

There are many ways to document your agreement even if you remain living together: Consent Orders, Binding Financial Agreement, Child Support Agreement and/or Parenting Plans. If you need assistance sorting through the options and finding which one is right for your circumstances, contact Advocate Lawyers to discuss your specific circumstances and how we can help you.

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