If you and your former partner have considered getting a divorce, you may have also contemplated whether you can be separated but living together.
Under Australian family law, to get a divorce, you must be separated for 12 months. However, what if factors such as finances or stability do not make it possible for you to be living in separate residences?
The purpose of this article is to discuss the multiple situations where it is possible to be separated but living together.
Determining Your Eligibility For Divorce
The Court must be satisfied with three things before approving your Application for Divorce. One of these critical items that are applicable in every divorce is the requirement that you are separated. See the list below for a complete picture of your needs.
You and your former partner have lived separately and apart for a minimum of twelve months: To satisfy this requirement, you may have still been separated but living together. The main objective behind this requirement is that the parties have behaved with one another in a way that they are no longer in a relationship since separating.
Australian family law recognises that some former couples will need to continue living together for financial reasons or stability. Accordingly, former couples who are separated but continue to occupy the same residence are recognised under section 42(2) of the Family Law Act.
There is no reasonable likelihood or the prospect of resuming married life: This is when both parties are confident that they do not want to continue working on their marriage and relationship.
The proper arrangements have been made for children under the age of 18 (if any): This requirement necessitates arrangements to have been made for the children concerning matters such as:
- Where the children will live;
- The school, the children, will attend;
- Who will drop off and pick up the children from school; and
- What days they will spend with each parent.
Why Are People Separated But Living Together?
Beyond emotional factors, the divorce process is quite challenging for several other reasons related to your lifestyle. Accordingly, it is a common scenario that in Australia, people are separated but living together.
Stability for children – Divorce can be overwhelming for all parties, particularly when there are children involved. More often than not, moving out of the marital home can trigger emotional stress and confusion in children. For this reason, many separated couples continue living together to provide their children with a sense of stability. This time allows children to become accommodating to the changing circumstances and will enable parents to agree about parenting responsibilities and arrangements moving forward.
Financial reasons – Whether you’re married or in a de facto relationship, you’re likely to have budgeted your household income and organised expenses as a couple. Therefore, arranging your finances can be an issue in the early stages of separation. Many couples temporarily stay together as they are unable to afford rent or mortgage payments by themselves. This is especially an issue in Australia with the ever-increasing cost of living, making it hard to live in certain parts of the country with one income.
Convenience – For many of us, our family home is reasonably close to many aspects of our lives. This includes family, school, work, and friends and so on. Therefore, it is often convenient and more manageable for former couples to be separated but living together until they find the time to organise similar arrangements.
How To Prove You Are Separated But Living Together?
If you are separated but living together during the 12-month separated period, you will need to explain your situation to the Court by providing evidence of the breakdown. Accordingly, both parties will need to provide an affidavit to the Court that supports both individuals’ desire to no longer resume married life.
An affidavit is a written statement prepared by you to present the facts of your matter to the Court. You will need to swear or affirm the affidavit to legalise the document. This can be done before an authorised person, such as a Justice of the Peace or a lawyer.
Please see here for a guide on writing your affidavit.
What Should You Include In Your Affidavit?
Financial Aspects Of The Relationship – A degree of financial independence may be indicative of separation. This may include evidence of the parties terminating joint bank accounts and opening individual accounts or rearranging the payment of household expenses such as groceries, bills, etc.
Social Aspects of the Relationship including:
- Whether family and close friends are aware of the relationship breakdown;
- Whether you go out separately with your friends;
- Whether you go out together socially;
- Whether you go on holidays separately;
- The Absence of a sexual relationship; and
- Any efforts you have made to distance yourselves from one another socially and in the capacity of a married couple.
Importance of Seeking Legal Advice
When discussing matters such as a couple being separated but living together, it is essential to remember that this is an acceptable situation by the Courts to satisfy the eligibility requirements for an application for divorce.
If you have any further questions regarding divorce or other family law matters, we can help provide you with the guidance you require.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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