In order for married couples to get a divorce the parties have to have been separated for at least a year.

It is not uncommon in family law matters for spouses to be separated but for them to remain living under the one roof due to financial reasons.

The fact that you are still living together (but not as a couple) does not mean that you can’t get a divorce. However, it does require that additional information be made available to a court registrar in order to prove that separation really has occurred.

The information provided to a court about your separation while living under the one roof is normally set out in an affidavit and lodged at court. An affidavit is a written statement you swear or affirm and which is used as your evidence in court.

If you are applying for a divorce on your own (as opposed to a joint application by you and your spouse) then you should lodge an affidavit by yourself and also lodge one from an independent person such as a friend, family member or neighbour.

The affidavit lodged by you should contain information that indicates how you have separated from your spouse. I have set out below some questions you might ask yourself and include in your affidavit:

  1. How did your separation come about? Did one spouse advise the other party or was it mutual?
  2. Did you have any discussions on how to proceed in the future? Did you discuss the monetary considerations?
  3. If you have children, what arrangements did you make regarding the children while you were living under the same roof?
  4. What, if anything, was the change in sleeping arrangements? Did one party move into the spare bedroom?
  5. Who did you tell after that? Family and friends?
  6. How did your lives change? For example:
    • Did you eat meals separately?
    • Did you separate out your money and get separate bank accounts?
    • Did you stop going out together as partners?
    • Did you split the chores?
    • Did you eat separate meals?
    • Did you stop cooking and doing chores for your spouse? Did the spouse do the same?
    • Did you stop going out as a family?
  7. What government departments did you advise of your separation?

Similarly, the questions that you might ask a friend and the information that your friend might include in his/her affidavit might be as follows:

  1. When did s/he first find out that you had separated from your spouse?
  2. How did s/he find out?
  3. What date did s/he believe was your date of separation?
  4. What, if anything did you tell your friend about why you were still living together in the same home?
  5. What did s/he see from your behaviour that indicated a separation, for example, you stopped going out together, started seeing new people etc.
  6. Whether s/he visited your home before and after separation and what s/he saw were the changes, for example, she might have seen that you are now using the spare bedroom.

Please note that the above is not an exhaustive list of everything that might be relevant, but hopefully do help to give you an indication of what information the court would expect. In difficult or uncertain situations you should seek legal assistance.

The point of these questions and the affidavits more generally is to show the court that there really have been changes to the way that the two of you live that amount to a genuine separation within the same house. It is not uncommon for people to be unhappily married but still living together as a couple, whether for convenience or because they think it is better for the kids or for some other reason. The court needs enough information to be able to distinguish the first situation from the second.

Overall, if you assert that you are separated and remained living under the one roof, but have remained sleeping in the same bed, have not separated out your finances, and your friends and family are not aware of it then it would be much harder for a registrar of the court to accept that you have separated.

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