Law Blog

If you are separated but still living in the same house/ apartment as your ex-partner pending a divorce, there are certain things you should know.

Legally this is cohabitation is known as being "separated under the one roof" and is a reasonably common situation, as not everybody has the option to move elsewhere after a separation.

A divorce can still be granted after 12 months of such a situation, provided the parties do not engage in sexual activity together and the marriage itself has irretrievably broken down (as this is a requirement for all divorces).

There is no definitive rule on how exactly the parties may live and behave together whilst separated, but it is clear from cases such as In the Marriage of Pavey (1976) 10 ALR 259 that the court must be confident that the marriage was over during the period of being 'separated under the one roof'. The Family Law Act 1975 (Cth) provides at s 49 (2) that the parties may also render some household services to each other, but it is up to the court to decide if these household services were in line with a terminated marriage.

As an exaggerated example, the household service of bringing breakfast in bed with scented candles, massage lotion and chocolate mints to your ex-husband every morning in exchange for him using the massage oil on your back before you go to work may indicate to a court that the marriage is not actually over, whereas taking turns to cook dinner for the whole family (including your ex-partner) may be in line with what the court would see as being an activity in line with a terminated marriage - and thus a permissible household service.

Although it is up to the court to decide whether or not to call on evidence regarding the way the parties were living together under the one roof during their separation, having the evidence available for the court anyway can't hurt. So if you have a friend you can invite over a few times during your separation so he or she can see how you and your ex-partner are living, and if your friend is kind enough to swear an affidavit about what he or she has seen and heard, this may be very helpful in establishing that your marriage has indeed irretrievably broken down.

So if you are going through a separation and are worried that in order to obtain a divorce you must move out of your home away from your ex-partner in order to have a divorce granted, speak to a family solicitor as soon as you can to see how the above information applies to you, and to put your mind at ease.

This website contains general information only. This site does not contain any legal advice. If you require legal advice, contact an Australian Legal Practitioner.