Divorcing while you are living under the same roof

You can get a divorce in Australia even if you are still living in the same house and divorce living under one roof. This is known as “separated under one roof.” The law recognises that couples may need to continue living together for various reasons such as financial constraints, co-parenting responsibilities or lack of affordable housing.

However, because you are still living together you need to provide extra evidence to the court to prove your relationship has ended. The court needs to be satisfied you have been separated for the required 12 months and there is no reasonable likelihood of you resuming a marital relationship.

Here is a step by step guide on how to get a divorce living under one roof:

Step 1: Establish Your Separation Date

The separation date is the day one of you decided the marriage was over and told the other person, either verbally or through your actions. This is the day your 12 month separation period starts.

Step 2: Change Your Living Arrangements and Behaviors

You need to be able to show the court you are no longer living as a married couple. The court looks for evidence of a fundamental change, such as a change in your relationship. You should take steps to show you are living separate lives, such as:

• Separate Bedrooms: This is one of the biggest indicators.

• Dividing Finances: Open separate bank accounts, stop using joint credit cards and divide household expenses.

• Separate Household Duties: Stop doing laundry, cooking or cleaning for each other. You should manage your own meals and personal chores.

• No Shared Social Life: Stop socialising or attending family events as a couple.

• Inform Others: Tell friends, family and neighbors you have separated. This is important as their testimony may be required later.

• No Sexual Relationship: The absence of a sexual relationship is a key factor.

• Notify Government Agencies: If applicable, notify Services Australia (Centrelink) and the Australian Taxation Office of your change in relationship status.

Step 3: Prepare the Application for Divorce

You can file a sole application (one person applies) or a joint application (both of you apply together). A joint application is generally easier and more amicable as it removes the need to serve documents formally.

Step 4: Prepare and File an Affidavit

This is the most important part of the process for divorce living under one roof. You need to prepare a sworn statement, known as an affidavit, that provides the court with the extra information it requires.

Your affidavit must include:

• The separation date and the specific circumstances that led to the breakdown of the relationship.

• The reasons why you are still living in the same house (e.g. for the children, financial reasons or lack of affordable housing).

• A detailed account of your new living arrangements and how your lives have changed since separation (e.g. separate bedrooms, separate finances, separate social lives etc.).

• Any other factors that demonstrate the marriage has irretrievably broken down.

**Step 5: Get Corroborating Evidence (Affidavit from a Third Party)

For a sole application you will generally need to provide a second affidavit from an independent third party (e.g. friend, family member or neighbour) who is aware of your living arrangements and can confirm your separation.

If you are filing a joint application you can either have both parties provide separate affidavits or have one party provide an affidavit and a third party affidavit.

**Step 6: File the Application and Attend the Hearing (if required)

Once you have all the necessary documents, including the divorce application, your marriage certificate and the required affidavits, you file them with the Federal Circuit and Family Court of Australia.

If there are children under 18 you may be required to attend a short court hearing. In some cases the court may also require the person who provided the third party affidavit to attend.

Important Note

While the law allows for divorce while living under the same roof it can be a complex and challenging process. Seeking legal advice from a family lawyer is highly recommended to ensure your application is properly prepared to avoid delays or rejection by the court.

**How Kate Austin Family Lawyers Can Help **

Divorce while “living together under one roof” is legally complex because the Court starts with the presumption that you are still a couple. To succeed you must provide compelling evidence—usually via detailed affidavits—proving that your domestic lives, finances and social interactions have fundamentally changed. A family lawyer is crucial here; they will make sure your evidence meets the legal requirements to avoid your application being refused. Without expert advice, small mistakes in your evidence can restart your 12 month separation period, adding to the cost and stress of an already tough time.

Relevant Legislation 

The requirement to prove “separation under one roof” is anchored in the Family Law Act 1975 (Cth). While the Act is federal, it sets the standard for all states and territories (except Western Australia, which uses the mirror-image Family Court Act 1997).

There are two key sections that govern this situation:

1. The Defining Section: Section 49(2)

This is the specific part of the legislation that allows you to be “separated” while still living in the same house. It states:

“The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.”

 

The Nuance: This section acknowledges that “separation” is a state of mind and a change in the nature of the relationship, not just a change of address. It allows the Court to accept that even if you are still doing the occasional load of laundry for each other or sharing a kitchen, you can legally be “separate and apart.”

2. The Requirement Section: Section 48

While Section 49(2) allows the arrangement, Section 48 creates the necessity for the 12-month proof. It mandates that:

• The only ground for divorce is the “irretrievable breakdown” of the marriage.

   

• This breakdown is proven only by showing the parties have been separated for at least 12 months.

   

When you live under the same roof, the Court is naturally more skeptical of whether that 12-month clock has actually started. This is why the Affidavit is required—it serves as the evidence needed to satisfy the Court under Section 48 that the “consortium vitae” (the life of the marriage) has truly ended despite the shared residence.

3. The “Consortium Vitae” (Case Law)

While not a numbered section of the Act, the “test” used by lawyers to satisfy the legislation comes from famous cases like Pavey & Pavey (1976). The Court looks for the destruction of the “matrimonial relationship” across five categories:

1. Shelter: (Are you in separate rooms?)

2. Sexual Intercourse: (Has the intimate relationship ceased?)

3. Social: (Do you tell friends you are separated? Do you go to events together?)

4. Financial: (Are your bank accounts and expenses separate?)

5. Public Protection : (Do you still present as a couple to the outside world?)

Summery 

The Australian Divorce process is very procedural must be submitted into the Australian Family Court in accordance with the Family Law Act Australian Divorce process