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.
The family home is an evocative image, a symbol of the belonging and togetherness a family represents.
It is made of memories, voices, footsteps, food, each room something different, all collected under the same roof.
It is a place coloured as much by individuals’ lives as by what we see in media, books, film and television.
The familiar front door, the notorious creaking step, the painted walls. There is no division or disquiet – or is there?
The facts are that a significant number of couples in Australia live separated and living under the same roof.
Why Be Separated Living Under One Roof?
The question that inevitably comes with separation under one roof is why, after deciding that they cannot be together anymore, would someone choose to keep living in the same house as their ex-partner?
It is rarely an easy decision.
Couples may be separated but still living together for days, weeks, months or even longer, and this is different for everyone.
The infamous Sydney housing market is one.
Houses in Sydney have a median price of over $1,200,000, over than $300,000 more than the Melbourne, the city with the next most expensive property in Australia.
Finding a suitable place for one spouse to move to – taking into consideration their budget, arrangements for their children and ease of transport to their workplace – can be incredibly difficult, whether renting or buying.
Many spouses also jointly own their home.
When they decide to end their relationship, this can cause all sorts of financial and logistical complications. Joint home ownership can work out as the best option for a lot of couples, especially as another result of an increasingly hostile housing market.
If rearranging home ownership, finding a new place to live and moving out is too much of a problem or not financially viable, two former spouses may continue to live in the one home.
Yet another financial reason for staying under one roof is that property settlements can take a long time to sort out. Neither spouse may be able to move out before the assets have been divided.
For couples with children, choosing an area to live in together and raise a family is hugely important.
Couples put a lot of thought into the way they want to live together and what sort of house they want to live in. They look at their budget, different suburbs, public transport options, infrastructure, nearby schools, local arts and culture, how they would get to work…
Separation can disrupt all of this. Children are one of the major reasons couples stay in the same home when they are separated.
If the children attend a local school, it can be hard to move away to a house in a location that still suits. They may end up travelling long distances each day.
The ex-partners often do not want to distance themselves from their children’s lives and may wish to continue parenting together. For both practical and emotional reasons, they might find it better to stay in the one home.
Undoubtedly, this can have consequences for the children. They are much more likely to see or sense the conflict when both their parents continue living in the same space.
Modelling good conflict resolution becomes more important on the parents’ part.
How Does Australian Law Define Separated Under One Roof?
It can be hard to determine a couple’s legal status as “separated under one roof.”
This category is becoming more and more common.
In 2017, 38,692 people were registered with Centrelink as separated under one roof.
This figure is up from 35,103 in 2016, and will only continue to rise.
Applying for a divorce requires at least 12 months of separation, and a couple who has continued to live in the same house for some or all of this time will have to provide evidence and explanations that despite living together they were genuinely separated.
This involves proving that each former partner in the relationship is no longer a “member of a couple,” according to the definition in the Social Security Act 1991.
To determine the existence of a relationship, the court looks at certain factors.
Separated and Living Under One Roof
A couple separated under one roof must show that despite living together they no longer act as a couple according to the following five factors.
These all come under the practicalities of separating from someone while still being in the same space.
The financial aspects of the relationship
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 a 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.
The nature of the separated household
The nature of the household may become similar to that of a share household when a couple separates but still lives together.
Individual choices and circumstances are all different, and separated couples will probably establish their own 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 own shopping, cooking and cleaning, or that they have a roster system.
The social aspects of the separated relationship
The social aspects of the relationship mean whether the former partners present themselves to others as separated or in a relationship.
It is possible for family, friends and acquaintances to 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 own 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.
The presence of a sexual relationship
A sexual relationship between the two parties is generally an indicator of a couple relationship.
However, the absence of a sexual relationship does not definitively mean that the relationship has necessarily ended.
The nature of the commitment within the relationship
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.
Proving Separation under one roof to the Court
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 support their divorce application.
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 breakdown of the relationship.
This may be a friend, family member or a neighbour.
For an affidavit to be valid, it must be authorised by a lawyer or a Justice of the Peace.
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 own affidavit.
In the case of separation 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. For example, an affidavit may detail new sleeping arrangements, separate bank accounts and a reduction in shared activities, among other things.
It is also necessary to provide a reason for continuing to live in the same house after separating.
Separated living under the same roof
Homes with separate beds, designated shelves in the fridge and scheduled times to use the lounge room are becoming increasingly common.
Physically separating – by streets, suburbs, states or even countries – is what most people think of when it comes to separation and divorce, but it is not the only option.
Being separated under one roof does not work for everyone, and it may be only temporary, but it is a real possibility.