Plenty of couples stay in the same home after their marriage ends. Money is often tight and rentals can be hard to find. Some parents also want the children to keep a stable routine for a while. None of this stops you applying for a divorce in Australia, but the court will want more information from you.
This guide explains what separation under one roof means and what the court looks for. It covers the extra affidavits you need and who can write them. It also points to free resources from the courts and Legal Aid. It is general information only, and the rules and forms can change.
The 12 month separation rule
Divorce in Australia falls under the Family Law Act 1975, and there is only one ground for it. The marriage must have broken down irretrievably. You show this by proving you have lived separately and apart for the 12 months immediately before you apply. The period counts back from the day you file, not from the hearing date.
Living apart does not always mean living at different addresses. Separation under one roof means you have separated but kept living in the same home. The Federal Circuit and Family Court of Australia fact sheet on separation under one roof says this can last anywhere from a few days to several years. If any part of your 12 month period was spent in the same home, you need to give the court extra information.
The court gives two simple examples. A couple separated for 14 months who lived in the same home for five months after separating must provide the extra material. A couple separated for five years who lived in different homes for the final two years does not. The question is always what happened in the 12 months right before filing.
What the court needs to see
Sleeping in separate rooms is not enough on its own. The Legal Aid NSW factsheet on separation under the same roof explains that the court wants evidence that one or both of you said the relationship was over. It then wants to see that you behaved as separated people from that point, both inside and outside the home. Your affidavit is where you show this.
An affidavit is a written statement that is sworn or affirmed before an authorised person, such as a lawyer or a Justice of the Peace. It is the main way to put evidence before the court. The federal court’s fact sheet sets out what your affidavit should cover. The main points are listed below.
- changes in sleeping arrangements
- fewer shared activities and family outings
- doing fewer household tasks for each other
- separate finances, such as separate bank accounts
- telling family and friends about the separation
- why you stayed in the same home and whether that will change
- care arrangements for any children of the marriage under 18
- any government agency you told, such as Centrelink or Services Australia (Child Support)
If you receive a government payment and told an agency about the separation, attach any letters they sent you. The Family Court of Western Australia also asks whether either person has started a new relationship since the separation date. It suggests mentioning changes around occasions like birthdays and Christmas. Specific details carry more weight than general statements.
Who writes the affidavits
The number of affidavits depends on how you apply. In a sole application, you file your own affidavit plus one from an independent person. This is often a family member, friend or neighbour. Both affidavits must be served on your spouse with the other divorce documents.
In a joint application, each spouse must file their own affidavit. If only one of you can file, that person files one and an independent person files another. Legal Aid NSW notes that each person who signs an affidavit should be prepared to attend court. They may be asked questions about what they wrote.
The independent witness
The witness must be over 18 and should have known you during the marriage and after the separation. A friend, relative or work colleague can fill this role. Their affidavit should describe what they saw and heard themselves, with examples. The Family Court of Western Australia says it must go beyond what either spouse told them.
Good witness evidence might describe seeing changes in your routines as a couple. It might mention living arrangements the witness noticed when visiting. It should state the witness’s relationship to each of you. Vague statements of support will not help much.
Writing your affidavit
Legal Aid NSW suggests using numbered paragraphs and keeping to one issue per sentence. Use names, dates and places wherever you can. If you cannot remember an exact date, give your best estimate. When you quote what someone said, introduce it with “words to the effect of”.
A clear structure helps the court follow your story. Start with your details, the date and place of the marriage and any children. Then describe how you lived before the separation and what was said when it happened. Finish with the changes that followed and whether either of you has moved out.
Attach supporting documents as annexures and label them A, B, C and so on. Sign each page in front of a Justice of the Peace or lawyer. Any corrections must be crossed out and initialled by you and the witnessing JP or lawyer. The Legal Aid NSW factsheet sets out these steps in more detail.
Do you need to go to court?
If you file a sole application and there is a child of the marriage under 18, you must attend the hearing. In other cases you may not need to attend if your affidavits set out the circumstances properly. If the court needs more, it will adjourn the case. It may ask you to file further material or come to court.
Legal Aid NSW warns that the court may refuse a divorce if you still live together at the hearing and plan to continue. A divorce order cannot be made where the relationship is reasonably likely to resume. If you still share a home when you apply, you must explain your future living arrangements.
Practical points after separation
Divorce only ends the marriage. It does not sort out property, money or parenting arrangements. Those issues are separate and have their own rules and time limits. Our article on the differences between a consent order and a binding financial agreement explains two common ways to formalise a property deal.
Separation under one roof can be a tense time, so some planning helps. These tips to get the most out of a separation cover some of the practical steps. If overseas travel is on the cards, read about why you may be stopped taking your children abroad after divorce. Each of these issues can affect the others.
Free help is available before you pay for anything. Legal aid offices and community legal centres can give advice on your situation. Court staff can help with forms and process but cannot give legal advice. If you decide to hire someone, see our guide to choosing the best divorce lawyer.
How the rules differ around Australia
The Family Law Act applies across the country. In Western Australia, the Family Court of Western Australia publishes its own guidance on separation under one roof. Its requirements closely match the federal court’s fact sheet, with a few extra suggested topics. Forms, filing systems and fees also change from time to time, so check the current court website before you file.
Frequently asked questions
Can we apply for divorce while still living together?
Yes, but you need to file the extra affidavits. You also need to explain your future living arrangements. The court may refuse the divorce if you plan to keep living together and the relationship is reasonably likely to resume.
Who can be the independent witness?
An adult who knew you during the marriage and after the separation. This is often a family member, friend, neighbour or colleague. They should describe what they personally saw and heard.
Does sleeping in separate rooms prove separation?
Not on its own. The court looks for a clear statement that the marriage was over. It then looks for changes across your daily life, finances and social activities.
Is the 12 months counted to the hearing date?
No, it is the 12 months immediately before you file. Being separated for 12 months by the hearing date is not enough. Check your dates carefully before you lodge the application.
This article is general information about Australian law and is not legal advice. Laws, forms and court processes differ between states and change over time. Speak with a qualified lawyer, a legal aid office or a community legal centre about your own situation.
