We’ve separated but we still live together: Can I get a divorce?

Separation looks different for each and every couple. For some it is immediate, dramatic and bold; for others it slowly creeps up on them, leading up to a realisation that the relationship has ended for good. Separating is no longer synonymous with the forced vacation of a person from the family home. Today, and in particular as a result of the effects of COVID-19, people who are going through separation have been forced to become a lot better at learning to live with an ex-spouse.

Most importantly of all, separation is a time when you will need the most help and information.

What is separation?

When the word “separation” is used in this article, we refer to it within the context of the Family Law Act.

Section 49 Family Law Act provides that “the parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other”.

Whether a couple has separated is determined based on a holistic assessment of the facts and circumstances of the particular relationship and whether the breakdown of a martial or de facto relationship can be inferred:

  1. Physical separation is neither necessary nor sufficient alone – it is one consideration, of many;
  2. Have one or both of you formed the intention to sever the relationship? Has this been communicated?
  3. Do you continue to socialise together, or apart?
  4. Have you separated your finances?
  5. Do you both continue to cook and clean to each other?
  6. Do you communicate at all? Do you share the home, or have you carved out your own separate zones?
  7. Have you told friends, family, government department, etc of the separation?
  8. There is no exhaustive list of factors.

In essence, you need to able to identify how your relationship changed before and after the separation. If you have separated, there will be aspects of your daily life that have changed, and more than likely, family and/or friends will have noticed these changes. If you intend on applying for a divorce, you will need a statement from a witness about their observations of your separation. Your solicitor will help you prepare this.

Can I still get a divorce?

The short answer is yes, as long as you have been separated for a period of 12 months. It does not matter that you continued to live in the same house, provided that you can provide a short statement that proves that you have separated, and that a witness provides a corroborating statement.  Putting together a complete application can be a little complicated, and we highly recommend that you speak to a solicitor for advice relevant to your specific situation.

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