Can I apply for Divorce if we are still living in the same house?

Our earlier article by Mia Doncevski discussed the requirements for a Divorce. What happens if you are still living under the one roof but not as Husband and Wife? Can you still apply for Divorce? The simple answer is yes, you can.

Separation under the one roof occurs when a couple lives together but lead separate lives. This can happen for various reasons, such as financial constraints, the need to care for children, or the lack of alternative accommodation. To prove separation under the one roof, the couple must demonstrate that they have ceased their marital relationship and are living independently of each other.

When applying for divorce under the one roof, the court will consider several factors to determine whether the couple is genuinely separated. These factors include:

1. Separate Sleeping Arrangements: The couple must show that they no longer share a bedroom.
2. Lack of Sexual Relationship: The absence of a sexual relationship is a significant indicator of separation.
3. Separate Finances: The couple should maintain separate bank accounts and manage their finances independently.
4. Household Duties: The division of household chores and responsibilities should reflect a separation.
5. Social Activities: The couple should demonstrate that they no longer engage in social activities together as a couple.
6. Communication: The nature and extent of communication between the parties can also be relevant.

To support a claim of separation under the one roof, you must provide evidence to the court. This evidence can include:

• Affidavits: Both parties should provide affidavits detailing the nature of their separation. Affidavits from friends, family members, or neighbours who can attest to the separation may also be required.
• Financial Records: Bank statements, utility bills, and other financial documents showing separate financial arrangements.
• Correspondence: Any written communication between the parties that supports the claim of separation.

The process of filing for divorce under the one roof is similar to a standard divorce application, with additional requirements to prove separation. The steps include:

1. Complete the Application: Fill out the Application for Divorce form, available on the Federal Circuit and Family Court of Australia website.
2. Prepare Affidavits: Prepare and file affidavits from both parties and any supporting witnesses.
3. File the Application: Submit the completed application and affidavits to the court. This can be done online or in person.
4. Serve the Application: Serve the divorce application on the other party. If both parties are applying jointly, this step is not necessary.
5. Attend the Hearing: If the court requires further clarification, a hearing may be scheduled. Both parties may need to attend to provide additional evidence.

Applying for divorce after being separated under the one roof can be a complex process, requiring substantial evidence to prove the separation. It is essential to provide detailed and accurate information to the court to support your claim. If you are considering this type of divorce, contact one of our family law Solicitors at Solari & Stock to ensure you meet all the necessary requirements and navigate the process smoothly.

Has this topic created questions for you? Are you living in the same house, but no longer together as a couple? Please contact our team of Sutherland Shire Solicitors at Solari and Stock in Miranda to discuss your concerns on 8525 2700, or click here to request an appointment with one of our Family Law Team.

Are you ready to get started with your Family Law enquiry now? Click here to go through to our secure online Settify portal and find out where you stand now.

Article written by Shweta Kumar
Photo by Priscilla Du Preez on Unsplash

To read the article referred to above, My Husband/Wife Doesn’t Want to get Divorced! What can I do? by Mia Doncevski please click here.