Still living together – can we apply for a divorce?

Publications > Still living together – can we apply for a divorce?

 

January 2012

The Family Law Act requires that couples must be separated for 12 months and one day in order to apply for a divorce.  The one day accounts for the fact that the day that the couple ‘separated’ isn’t counted towards the 12 month period.

 

If you are separated but due to circumstances you are still living with your ex, you must show that there was a breakdown of the marital relationship.  Physical separation is not necessarily indicative of a severing of the relationship.  Parties can be considered separated albeit while living under the one roof. 

 

What constitutes separation?
Separation is demonstrated when the following requirements have been proven:-

 

1. There is an intention by one or both of the parties to sever or not to resume the marital relationship;
2. The parties act on that intention or act as though the relationship has come to an end; and
3. Where only one party to the relationship considers that the relationship is at an end that party must communicate that attitude to the other party.

 

Communication can be express, or implied by an unequivocal action (such as moving out).  However, it is prudent to ensure that has been express communication to ensure separation.

 

Problems?
In a divorce application, the parties must show that the relationship has broken down irretrievably. 

 

Parties who are separated but live under the same roof must avoid resuming the relationship (including sexual relationship).  Parties should also refrain from performing household duties for one another.

 

If the couple cannot show that the marital relationship was severed, they may run into problems trying to establish that separation has actually occurred, or when separation commenced. 

 

Advice?
If you plan to live in the same house as your ex for any amount of time during your separation, make sure you seek confidential and personal advice from a family lawyer.

 

Contact
For assistance and confidential advice about your family law situation, please contact Tuskeen Jacobs at t.jacobs@rostroncarlyle.com or 07 3009 8444

 

Helena Redmond
Trainee Solicitor, Family Law