In Australia, there are two elements when considering an Application for Divorce under s 48 of the Family Law Act 1975 (Cth) (“the Act”) – whether the marriage has “broken down irretrievably” (s 48(1)) and whether the parties have been separated for “a continuous period of not less than 12 months immediately preceding the date of the filing of the application” (s 48(2)). If these elements are satisfied, an Application for Divorce is typically granted.
However, s 48(3) of the Act provides an important caveat – a divorce order “shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed”.
When separating, you may decide to continue living together in the same house (‘under the one roof’) for any number of reasons – financial constraints, care considerations for dependent children or convenience.
In light of s 48(3) of the Act, if the parties are still ‘living under the one roof’ when an Application for Divorce is made (or have lived together at any point during the 12-month separation period prior to application), the Court requires an additional affidavit be filed in support of the application, explaining the specific circumstances.
The Court provides a helpful summary of the information required to demonstrate that a change in the marriage has occurred and that you (and your former partner) have genuinely separated. In particular, the Court asks for information (within the affidavit) regarding:
- A change in sleeping arrangements;
- A reduction in shared activities or family outings;
- A decline in performing household duties for each other;
- A division of finances (e.g. separate bank accounts); and
- Any other matters that show the marriage has broken down (e.g. if you have notified family and friends of your separation).
The Court also requires the affidavit to detail the circumstances of why you have chosen to continue living under the one roof post-separation, the living arrangements made for any minor children of the marriage and which (if any) government departments have been notified of your separation, if you are in receipt of any government benefits.
As such, it is entirely possible to file for divorce while you and your former partner continue to live together – it simply requires an additional supporting document. If you need assistance preparing an Application for Divorce or drafting an affidavit in support of your Application for Divorce, please do not hesitate to contact our office.
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