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One of the basic principles of family law is that married couples must be separated for at least 12 months before they are able to apply for a divorce. Sometimes, there may be disagreements about when a couple actually separated, or if they had separated at all. It can help to understand some of the fundamentals about separation.

Separation occurs when a relationship between two people ends.  If you wish to apply for a divorce, Australian family law requires a 12 month separation period so that both parties can be sure that they are making the right decision.

Separation is also an opportunity to make plans for childcare and property division.  These considerations can be stressful and difficult to navigate when the emotions of the separation are still fresh.

What is separation under one roof?

Separation under one roof occurs when two people end their relationship but continue to live in the same home for any period of time, whether it be a couple of days, weeks, months or years following the date of separation.

If they apply for a divorce, they will need to provide the Family Court with evidence that they have been living separately. This is usually by affidavit, which is a written statement that is sworn by oath (or affirmation). Because it has been sworn or affirmed, it can be used as evidence. The affidavit might contain statements about:

  1. A change in sleeping arrangements.
  2. A reduction in shared activities or family outings.
  3. A decline in performing household duties for each other.
  4. Division of finances.
  5. Notification to family and friends of the separation.
  6. Anything else that shows the breakdown of the relationship.
  7. Notification to government agencies such as Centrelink or the Department of Human Services (Child Support Agency) about the separation.

You will also need to explain to the Court why you decided to remain living under the same roof.

Regardless of whether you’ve separated under one roof or living in separate properties, it’s really important to be clear about the date of separation. Make sure that you’ve written it down somewhere and, if possible, communicated the date to friends or loved ones. This is to avoid any issues down the track if you are applying for a divorce after 12 months.

Websters Lawyers has a highly experienced team of family separation lawyers who can assist you with all aspects of family law, including separation and divorce. Contact us today for a free initial consultation. We’re here to help.


It doesn't cost you anything to know where you stand

*Please note: Websters lawyers is a South Australian based law firm, handling matters exclusive to South Australia, with offices located in Adelaide, Ridgehaven and Smithfield.

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