Separation Under One Roof

Thanks in large part to the COVID-19 pandemic, the Western Australian economy is expected to experience a recession in the 2021 financial year.

With increased unemployment rates, and house prices falling over the last 5 years,[1] there will likely be an increasing number of newly separated couples who will have little choice financially but to remain “separated under one roof”, at least for a time.

 

Why Does the Date of Separation Matter?

The date of separation between a couple can be relevant for several reasons. 

For de facto couples, it can be the difference between the Family Court of Western Australia having, or not having, jurisdiction to make orders for property adjustment and maintenance.  For the Court to have such jurisdiction, it is generally a requirement that the de facto relationship has existed for 2 years.[2] 

It is also relevant to the limitation period for de facto couples, who generally must commence proceedings in the Family Court within 2 years after their relationship ends.[3]

For married couples, a divorce can only be granted where the marriage has irretrievably broken down.  To show that the marriage has irretrievably broken down, the parties must have separated and lived separately and apart for a continuous period of at least 12 months, immediately before filing the application for divorce.[4]

 

Separation Under One Roof

Section 49 of the Family Law Act 1975 (Cth), which applies to married couples, provides as follows:

  • The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the parties.
  • The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

 

Are We Separated?

Whether there has been a separation under one roof will be a question of fact which is decided on the facts of each case.  As with many areas of law, it is not black and white, and the circumstances of each individual relationship will be considered.

For separation to occur between a married couple, one or both spouses must form an intention to sever and not resume the marital relationship, and act on that intention.[5]

The body of case law involving separation under one roof indicates that a comparison of the state of the relationship before and after the alleged separation may be required.[6]  The following factors may be relevant (to both married and de facto couples) in such an analysis:

  1. Whether one or both of the parties communicated to each other that they considered themselves to be separated.
  2. Whether the parties have continued to share a bedroom, and the extent to which any sexual relationship has been maintained.
  3. Any change in the financial relationship between the parties, for example the closure of joint bank accounts.
  4. How and when the separation was communicated to friends and family of the parties, and whether the parties have continued to hold themselves out to be a couple.
  5. A reduction in shared activities.
  6. The extent to which the parties have continued to perform domestic chores for the benefit of the other, such as cooking, cleaning, and laundry.
  7. The reason why the parties have remained residing under the same roof (e.g. financial pressures).
  8. Whether any government departments, such as Centrelink, have been informed about the separation.

 

What Next

If you consider yourself to be separated under one roof and require legal advice as to divorce, property settlement or parenting matters, please contact Bowen Buchbinder Vilensky for an initial consultation.

 

Disclaimer:  This article is intended to provide general information only and does not constitute legal advice. The article is in summary form and we recommend you seek legal advice or other professional advice as to whether and or how the information is applicable to your circumstances.

[1] https://reiwa.com.au/uploadedfiles/public/content/the_wa_market/house-prices-2013-web.pdf

[2] Family Court Act 1997 s 205Z(1)(a)

[3] Family Court Act 1997 s 205ZB(1)

[4] Family Law Act 1975 s 48(2). See also s 50(1).

[5] Pavey & Pavey (1976) FLC ¶90-051, citing Todd & Todd (1976) FLC ¶90-008.

[6] Todd & Todd (1976) FLC ¶90-008

PLEASE CONTACT

If you would like advice in this area please contact Kori O’Meehan at [email protected] 

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