Can You Be Separated And Live In The Same House?
Living in the same house
You can be separated from your spouse even if you are living in the same house. There is no legal or official document to complete to say you and your spouse are separated.
The court will look at several factors to prove that you and your spouse are validly separated if you live under the same roof.
These include whether you and your spouse have:
- Stopped wearing your wedding rings
- Ceased intimate and sexual activity
- Separated bank accounts and finances
- No longer attend social activities together
- Act in a way so that it is obvious to family, friends, employers, neighbours, coworkers and outsiders otherwise that the relationship is over
- Live in separate bedrooms
- Do not engage in shared social activities within the home such as watching television together or hosting friends together
- Do not perform household services for one another such as prepare meals, wash clothes, etc
Separated in the same house
Question: Can you be separated and live in the same house?
Answer: 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.
To file for divorce, you and your spouse need to have been separated for at least 12 months.
You may be separated by living in the same house for a few days or weeks after the date of separation, or for several months or more.
If any or all of the 12-month separation period was spent living under the same roof, you must provide additional information to the court with your divorce application.
This information must be contained in an affidavit, which is a written and signed statement affirmed as the truth.
It must be signed before an authorised witness, such as a lawyer or a Justice of the Peace.
Affidavits are used as evidence in court. In the affidavit about being separated under one roof, you must prove that you are no longer living as a married couple, despite being in the same house.
Certain factors of the relationship should be addressed in the affidavit: the financial aspects, the nature of the household, the social aspects, the presence of a sexual relationship, and the nature of commitment.
Financial aspects may include the use of separate bank accounts and whether either you or your former spouse are a beneficiary of the other person’s will, superannuation or life insurance.
The court would likely consider how bedrooms, bathrooms, other living spaces and household tasks are shared when looking at the nature of the household.
The social aspects of the relationship mean whether you present yourselves as a couple to other people, including your friends, family and institutions such as banks or your children’s school.
When determining the questions of ‘can you be separated and live in the same house’, a court may look at the presence of a sexual relationship in combination with other factors.
Indicators of commitment include companionship, emotional support and joint plans for the future.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.