Separated Under One Roof: Rules You Must Know

Can You Be Separated And Live In The Same House?

Yes, you can be separated from your spouse but both be living in the same house. Whatever the reason for choosing to remain separated in the same house, you should clearly define what the terms of your relationship are.

This is known as being separated under one roof, separated in the same house.

There is no legal or official document to complete to say you and your spouse are separated.

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How to Prove Separation Under One Roof

A couple separated under one roof must show that despite living together they no longer act as a couple. These all come under the practicality of separating from someone while still in the same space.

Separation Date 

The separation date holds significance, especially in legal contexts, to establish the beginning of the separation period, particularly in cases of separation under the same roof.

If two ex-spouses have been living in the same house for some or all of the required 12 months of separation, they must file an affidavit to prove separation under one roof.

Separation date serves as a reference point to determine the duration of separation for legal or financial matters such as divorce proceedings, property division, or eligibility for certain benefits.

Through Affidavit 

An affidavit is a written statement made by one of the parties in the relationship, or by an independent person who can provide evidence about the relationship breakdown. This may be a friend, family member or a neighbour.

For an affidavit to be valid, it must be authorised by a family lawyer expert in the separation process or a Justice of the Peace.

Two Scenarios:

  • An independent person only needs to file an affidavit if one partner is applying for the divorce by themselves.
  • If it is a joint divorce application, both partners file their affidavit.

If you are separated under one roof, the affidavit needs to present evidence and facts that prove the marriage or de facto relationship has ended and the spouses have separated. These are connected to the factors of a relationship.

Separated Under One Roof Rules

A couple separated under one roof must show that despite living together they no longer act as a couple. These all come under the practicality of separating from someone while still in the same space.

The court will look at several factors to prove that you and your spouse are validly separated from your spouse while living together through the following:

Separated Finances

Separating the finances is important in showing relationship separation through a lack of financial interdependence.

This step is necessary in separation in general, but evidence of it becomes more significant in the case of separation under one roof.

The financial aspects of separation under one roof usually involve closing joint bank accounts, deciding how bills will be paid, whether either ex-partner is listed on the other’s tax return, and whether they are a beneficiary of the other’s will, superannuation or life insurance.

The latter may be particularly difficult or time-consuming to arrange, which a court will take into consideration if the separation is more recent.

Sleeping Separately

The nature of the household may become similar to that of a shared household when a couple separates but still lives together.

Individual choices and circumstances are all different, and separated couples will probably establish their strategies in this respect.

The court would consider in particular how bedrooms, bathrooms and other living spaces are shared, and how household maintenance tasks are arranged. This may mean each person does their shopping, cooking and cleaning, or that they have a roster system.

Social Aspect

The social aspects of the relationship mean whether the former partners present themselves to others as separated or in a relationship.

Family, friends and acquaintances can believe the relationship exists as usual, but for the couple to be legally separated.

Many other points come under the social aspects, including whether the partners go out with their friends separately, whether they holiday together, whether close friends and other family members know that the relationship has broken down, and whether they continue to present themselves as a couple, for example to banks, real estate agents, government agencies and other institutions, including their children’s school.

Sexual Relationship

A sexual relationship between the two parties is generally an indicator of a couple’s relationship. However, the absence of a sexual relationship does not definitively mean that the relationship has necessarily ended.

The Nature of the Commitment

The level of commitment changes after separation, including separation under one roof, as the ex-partners create physical and emotional distance from each other.

Companionship, intimacy, emotional support, joint plans for the future and a willingness to help the other person in times of a personal or family crisis, or in the event of illness or hospitalisation, are indicators of commitment. Evidence of a lack of commitment in these respects is necessary to show that a couple is separated although still living together.

However, this is not always clear-cut. If a couple has not actively sought to divorce each other, this does not necessarily show continued commitment.
Similarly, calling a doctor or an ambulance in a medical emergency, or providing temporary care for a few days if no one else is available, may not indicate a continued commitment to a relationship with the other person.