Separation under one roof: What you need to know about separation while living together

Separation under one roof in Tasmania

“Separated under one roof” is a term used in the Federal Circuit and Family Court to describe situations where parties no longer consider themselves in a relationship but continue to live in the same home, usually for financial reasons or reasons relating to care of children.

This article will give you an understanding of how your living arrangements may affect your family law settlement or proceedings if you separate from your partner but remain living in the family home together.

If we are still living together, when is the date of separation?

Given the state of housing affordability and availability in Tasmania, it is common for people to continue living in the same house after they separate. However, this can lead to a question about the date the parties separated.

Many parts of the Family Law Act 1975 (Cth) (the Act) hinge on the date of separation. For example, parties must be separated for at least 12 months to be granted a divorce. For de facto relationships, the parties have 2 years after the date of separation to apply for orders altering property interests. We have more information about the process of obtaining a divorce here or de facto separation here.

Section 49 of the Act allows the Court to find that parties were separated despite cohabiting following the breakdown of the relationship. However, establishing the date of separation can still be complicated where the parties disagree on the date.

What are the “rules” for separating and living under one roof?

Every person’s circumstances are different and while there are no real “rules”, there are some key things that you can do to make sure that you are considered “separated”.

The date of separation can be contentious where one party thought the parties were going to reconcile and didn’t believe the relationship was over. Ideally, both parties should agree that they have actually separated. An email or message between you noting the date of any conversation confirming separation (even in passing) can assist later on. Space permitting, you should be sleeping separately and rolling back any joint social outings or joint finances.

Separating finances as soon as you have separated can assist with financial settlements later on, especially if you end up in Court. Make sure you keep good records of all payments made towards joint assets, such as mortgage payments, or any bills for the family home. This can be important to negotiating your financial settlement later, especially if you are the person contributing most of the money towards daily household expenses or bills. Actual evidence of payments will be given greater weight by the Court than broad statements that you paid most of the bills.

How to prove the date of separation?

The best way to prove when you separated is to keep detailed notes about dates that you:

• spoke to the other party about separating;
• changed sleeping arrangements, such as moved to a spare room;
• separated your bank accounts or advised government agencies of your separation;
• started dealing with parenting or household matters separately;
• began attending social events on your own; and
• started informing family and friends of your separation.

This information may be important if there is a dispute between you and your ex-partner about when you separated. Where there is a question about the date you separated, or where you have not lived separately for 12 months, you may be required to file an affidavit with your application to the court detailing the above information, so it is a good idea to keep these details just in case.

Can I get a divorce or apply for a property settlement while we still live together?

In short, yes. It is common for people to organise the sale of their shared home whilst they both continue to live in it before finding a new place to live. If you still live together, you will have to provide an affidavit with the above information and provide the court with information around why you remained living together after separation.

If you have questions about whether your living arrangements will affect your divorce or other family law proceedings,  contact our office for an initial consultation with a lawyer about your circumstances.