Separation under the same roof

Separation occurs when one or both parties to a marriage decide to live apart. You can be considered to be living apart and separated even if you continue to reside together. 

This is known as “separation under the same roof”. 

This can occur when a couple decides to separate. Still, due to financial or other circumstances, they are unable to physically move out of the primary family home and establish separate households. 

They may continue to share the same residence but live independently, with separate bedrooms and living spaces, and may even have separate daily routines.

Separation does not officially end a marriage. The marriage only officially ends once the Federal Circuit and Family Court of Australia makes a divorce order. 

According to the Family Law Act 1975 (Cth), a divorce order is made in circumstances where “the marriage has broken down irretrievably”. To apply for a divorce order, you must be separated for at least 12 months. 

In cases where two people are separated under the same roof and still live together, it may be more challenging to determine the date of separation, as required to apply for divorce

In such cases, to be satisfied that parties have been separated for 12 months or more, the court may consider various factors such as:

  • Finances
  • Living arrangements
  • Social life
  • Whether the parties had informed friends and family of the separation
  • Whether they were still conducting themselves as a couple
  • Intimacy