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I’m still living with my ex – can I get divorced?

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To apply for a Divorce in Australia, the Court must be satisfied that your marriage has broken down irretrievably and that there is no reasonable likelihood that you and your former spouse will resume the marriage.

To demonstrate this, you must be separated from your former spouse for 12 months and one day before applying for a Divorce. An example of separation can be when the parties start living apart from each other.

However, some couples remain living together in the same house whilst separated. This may occur for a number of reasons, including wanting to have both parties remain in the house for the children, financial reasons, health of the parties or even COVID-19 lockdowns. This is referred to as ‘separation under the same roof’.

What should I do if I still want to apply for divorce?

You may still be eligible to apply for a Divorce even if you have been separated under the same roof.

However, if you have been living with your former spouse separated under the same roof, within the 12-month period before you apply for Divorce, you will be required to provide the Court with additional information in the form of “Affidavit” evidence.

An Affidavit is a written statement that is sworn or affirmed with a qualified witness, such as a Justice of the Peace or a lawyer. The person giving the evidence in an Affidavit is referred to as the ‘deponent’.

Who needs to complete an Affidavit for separation under the same roof?

If you are applying for a Joint Divorce, yourself and your former spouse must each file a separate Affidavit. If one of the parties to the Divorce is unable to file an Affidavit, then an Affidavit must also be filed by an independent person such as a friend, co-worker, or family member. This independent person must know the parties and be aware of the circumstances of the separation under the same roof.

If you are applying for a Sole Divorce, you must file an Affidavit together with an Affidavit of an independent person (see above).

What should my Affidavit include?

Your Affidavit must prove that there has been a change in the marriage. The change can be gradual or sudden and must show that you and your spouse have separated leading to an irretrievable breakdown.

Examples of information which can be included in your Affidavit are below: (Please note, this list is not exhaustive, and not all factors may apply in your case)

  • Changes in sleeping arrangements (e.g. sleeping in separate bedrooms);
  • Division of finances (e.g. separate bank accounts for the parties);
  • Decline in performing household duties for each other (e.g. cooking, cleaning);
  • Reduction in shared activities (e.g. meals together) and family outings;
  • Changes to the parenting arrangements since separation;
  • Any notifications of your separation made to family or friends;
  • Information as to why you and your spouse continued to live in the same house after separation, and if there is any intention of changing the situation;
  • If you receive a government benefit, details regarding what government departments have been notified of your separation (e.g. Centrelink or Services Australia).

Can I prepare my own Affidavit?

Whilst you can prepare your own Affidavit, it must contain sufficient information for the Court to be satisfied that there has been a change in the marriage demonstrating separation. Without the relevant information, your Court Hearing may be adjourned.

We recommend obtaining legal advice and engaging a Family Lawyer to prepare your Affidavit.  Family Law Resolutions are here to help if you are looking for assistance in applying for Divorce whilst living separated under the same roof.

For more information, please contact us on 1800 357 000, email us at admin@familylawresolutions.com.au or book your Free 20-Minute Consultation using the following link: Book Consultation Now.

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