Can a couple separate and divorce while living together?

When we think of a married or de facto couple separating, we usually picture one of them being thrown out in anger by the other. Whether it is because of a long argument about finances or the infidelity of one party, we normally don’t expect these people to remain living together.

Real world separations can be much more complicated than we think and it’s not always convenient for ex partners to move into different residences. The term ‘separation’ can be misunderstood in the legal context whereby separating does not necessarily imply a physical separation.

For those wishing to spend the 12 month separation period (required before divorce can be granted) under the same roof, they will have to provide some added evidence that the relationship has broken down.

In order to prove that the relationship has suffered a irrecoverable breakdown the parties must convince the court that they have no chance of reconciliation. When this is done while parties remain living together it is known as “separation under one roof”.

The party or parties that wish to prove separation under one roof may need to provide evidence that they are no longer functioning as a married couple. This type of evidence includes:

  • Moving into separate bedrooms and declaring a change in sleeping arrangements
  • Telling friends and family that the separation has occurred
  • Disclaiming the separation in a signed and dated document
  • Having changed the last will and testament
  • Telling outside interests about the separation such as insurance companies or banks

There is no legal requirement, even after divorce is granted, that the parties physically separate. They can live in the same residence for as long as they wish without and legal need for them to become physically separate.

If one party has been granted the residence as an asset and wants the other party to leave they can apply for a sole occupancy order. This is usually only granted if it can be proven that the other party has a history of violence or there is a fear of violence from the other party and any children.

If a party leaves the residence and changed their mind later, they might have legal difficulty in trying to return. The act of removing personal possessions and leaving the residence may grant the other party sole ownership.

Couples can separate and then divorce even though they remain living together because the act of divorce only requires that the marriage has broken down.  However, former spouses that choose to separate may have to provide added proof that their relationship has indeed ended.