Do You Have To Be Separated Before Divorce?

To be divorced in Australia you need to have have been separated from your spouse for 12 months prior to applying for divorce. 

The Family Law Act states that a couple need to have had an ‘irretrievable breakdown’ of their marriage with no reasonable possibility of getting back.

What counts as ‘separated?’   

To demonstrate an ‘irretrievable breakdown’ of marriage, you need to have been separated from your spouse for at least 12 months.

To be separated you need to live apart from your spouse for that time, although being separated but remaining in the same house (for financial, parenting or logistical reasons) will also meet this requirement. This is referred to as ‘separation under one roof.’

Can you be ‘separated’ while living under the same roof? 

To satisfy the condition of ‘separation’ you need to provide evidence to the court that your relationship is over, and that you and your spouse did not act like a married couple during that time. 

The determination is unfortunately quite rigorous and comprehensive. Merely sleeping in different rooms is insufficient to be ‘separated.’ The court may find specific details such as how you divided your chores or your conversations immediately prior to separation.

You may also need to explain what your plans for living arrangements are in the future. If you intend to continue living together the court may not grant your divorce.

This is because the court is bound to decline Divorce Orders if there is a ‘reasonable likelihood’ that your relationship will continue. 

What evidence is required? 

The evidence required is an affidavit, which is a written and sworn statement declaring the truth. At least two affidavits are required where partners are separated under the same roof. 

You can either prepare one affidavit each from you or your spouse, or you can prepare one from yourself and one from a third person who knows that you two are separated under the same roof. The third person needs to be an adult over the age of 18 years. This can usually be a close friend or a family member living with you. Note that anyone who writes an affidavit will need to be prepared to go to court and potentially be examined by a judge on the truth of their statements. 

What needs to be in the affidavit? 

Your affidavit needs to explain what your marriage was like prior to and after the separation date, including details of what has changed. An affidavit is a relatively personal statement and should be prepared in line with the nature of your marriage.

The important thing to consider is that the court needs to be satisfied that you and your spouse are truly separated. It is generally recommended that your affidavit needs to be written quite specifically with an emphasis on exact dates and a clear sequence of events. 

Both affidavits need to be signed in front of a Justice of Peace (JP) or a lawyer. 

The affidavits must include you and your spouse’s names, date of birth and age. They also need to include when you met and married, when you separated, and any children of the marriage. 

The affidavits then need to detail the circumstances of your marriage, when and how you separated, and what changed after your separation.

Common details to be written about your marriage include the activities you undertook together, your financial arrangements and the intimacy of your relationship.

Common details to be written about your separation involve what occurred on the date of your separation in addition to what changed about your relationship after separation. 

An affidavit from a third person is quite similar but will have a greater emphasis on how they knew you and what they know about your separation 

Finally, you should explain when you or your spouse moved out. If you cannot move for any reason you need to explain why exactly you are still living under the same roof. This can include reasons such as difficulties in securing accommodation, financial hardship or the need for parenting arrangements. 

Where to Find Help? 

If you are living under the same roof while seeking a divorce, proving that you are genuinely separated can be a difficult and time-consuming process. Fortunately, there is an abundance of resources to help guide you. 

A useful sample affidavit can be found at Law Access.

A more generic template in addition to some useful tips on writing affidavits can be found at the Legal Aid website here. 

Both Legal Aid and Law Access can provide you with broad information about the divorce process and some limited legal advice. 

However, if you require specific assistance or are confused about your circumstances it would be helpful to speak to a specialist divorce lawyer. You can contact us via our contact page.