How to get a divorced while you are still living together
In Australia, you can absolutely get a divorce even if you are still living in the same house. This is a common situation 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 a shortage of affordable housing.
However, because you are still living together, you must provide extra evidence to the court to prove that your relationship has genuinely ended. The court needs to be satisfied that you have been separated for the required 12-month period and that there is no reasonable likelihood of you resuming a marital relationship.
Here is a step-by-step guide on how to get divorced while living in the same house:
Step 1: Establish Your Separation Date
The date of separation is the day when at least one of you decided the marriage was over and communicated this to the other person, either verbally or through your actions. This is the date from which your 12-month separation period begins.
Step 2: Change Your Living Arrangements and Behaviours
You must be able to demonstrate to the court that 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 most critical 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 one another. You should manage your own meals and personal chores.
No Shared Social Life: Stop socialising or attending family events as a couple.
Informing Others: Tell friends, family, and neighbours that you have separated. This is crucial 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 either 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 critical part of the process for separation under one roof. You must prepare a sworn statement, known as an affidavit, that provides the court with the additional information it requires.
Your affidavit must explain:
The date of separation and the specific circumstances that led to the breakdown of the relationship.
The reasons why you have continued to live in the same house (e.g., for the children, financial reasons, or a tight housing market).
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 are generally required to provide a second affidavit from an independent third party (such as a 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 the age of 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 permits 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 correctly prepared to avoid delays or rejection by the court.
