In the current economic climate it has become increasingly common for parties to separate under the one roof. It is possible to achieve a financial settlement and Divorce Order even if you are living under the one roof.

A Divorce Order is an entirely separate process to property and parenting matters. It is not a pre-requisite to be Divorced for you to file property or parenting proceedings, or to reach an agreement in relation to property or parenting matters.

A Divorce Order is the formal process of separating and once granted allows parties to re-marry should they wish to.

There are two prerequisites for a Divorce and separation:

• That there has been an irretrievable breakdown of the marriage; and
• That the parties have been separated for 12 months or more.

In situations where parties have separated but continued to live under the one roof, the date of separation is when one party has communicated a breakdown of the marriage to the other. This could involve a clear statement of an intention to separate, or one party moving to another room and commencing to live a separate life under the one roof.

If you have separated under the one roof and have been separated for over 12 months, you can file an Application for Divorce. To support your Application the Court requires an Affidavit from the Applicant and a friend or family to prove to the Court that the parties have been separated.

The Affidavits will set out details which include, but are not limited to:

1. The date of separation and how the parties came to consider themselves separated, i.e. what they said to one another;
2. The specific dates in which the parties lived under the one roof;
3. The separation of domestic tasks within the home;
4. Whether the parties slept in separate bedrooms;
5. The separation of financial matters;
6. Attendance at social events separately and not as a couple;
7. Any conversations the parties may have had with family and friends about the parties separation; and
8. Any other evidence you may have that supports the fact that the parties have been separated.

Once a Divorce Order has been granted the Order does not become effective until one month and one day after the granting of the Divorce. After this date, parties have 12 months to file for property settlement with the Family Law Courts. For this reason, parties may choose to file an Application for Divorce after property settlement matters have been resolved to allow parties time to negotiate without a time limit of 12 months.

If you have separated under one roof, or would like further advice in relation to filing for a Divorce please visit our ‘Divorce and Separation’ page or contact us for an obligation free chat.

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