Divorce in Australia has one ground: the irretrievable breakdown of a marriage. This requires that the parties to the marriage be separated for at least 12 months. An often-asked question is whether it’s possible to be separated from your spouse while living in the same residence.
The test for whether final separation has occurred was explained by Watson J in Todd and Todd (No 2) (1976) 25 FLR 260 as follows:
'In my view, ‘separation’ means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships' [emphasis added].
While Australian law pays some mind to the concept of separation being ‘two households under one roof’ (Fenech v Fenech (1976) 1 Fam LR 11,250), Australia has not completely applied the strict ‘two households’ test that has been applied in England. In the English case Hopes v Hopes [1949] P 227, separation under one roof was only reached when partners ‘ceased to be one household and become two households’, for example, ‘as if they were separated by the outer door of a flat’.
Instead, in Australia, case law has decided that the ‘two households’ test is not the real question; rather, based on the cases cited in Mullan v Worrell [2016] FamCA 943, the question is ‘whether there was a real sharing of a common life’ (Morris v Morris (1972-73) ALR 893), by satisfying the Court by explaining 'a change in their relationship, gradual or sudden, constituting a separation.’ (Pavey & Pavey (1976) FLC 90-051).
Therefore, separation under one roof for 12 months is possible, if the Court accepts that:
One or both spouses have formed the intention to sever, or not to resume the marital relationship;
One or both spouses have acted on that intention, or act as if it has been severed; and
There has been some direct or indirect communication of the intention to cease the marital relationship.
To convince the Court of this, you will need to file an affidavit with your divorce application that provides evidence of the above, including:
A division of finances (e.g. separate bank accounts);
The extent of separation within the house itself (e.g. a change in sleeping arrangements, a change in where each partner gets dressed, etc.);
The breakdown of the sexual relationship;
If friends, family, or any government departments you receive a benefit from have been notified of your separation;
A lack of recognition of the existence of the marriage by both spouses in private and in public relationships;
A lack of joint social life, shared activities, and family outings between the parties;
A decline in performing household duties (e.g. cooking) for each other;
A decline in time spent together within the home (e.g. not eating together);
A decline in communication beyond what is essential; and
Any other evidence that shows that the marriage has broken down.
In your affidavit, you may also need to:
Justify why you continued to live in the same home after separation, and if you intend to change the situation in future;
Explain any living arrangements made for children of the marriage under 18 while living under the one roof; and
Attach copies of any correspondence with others, such as government departments, regarding your separation.
If you are making a sole application for divorce (as opposed to a joint application for divorce), you should also file an affidavit by someone over 18 who is not your spouse who can corroborate your separation from your spouse, such as a friend, family member, or a neighbour.
Once the required application and affidavits have been filed with the court, and provided there is no dispute as to the date of the separation, you do not need to attend court, unless you have made a sole application and there is a child of the marriage under 18 years, or if the court requires more material and adjourns the case and deems it necessary for you to attend.
Finally, if there is disagreement over the actual date of separation and whether you have been separated for 12 months, it can turn a relatively simple divorce process into a long and expensive one. It may, therefore, be best to wait until the 12-month separation period is beyond doubt.
Of course, the above is only a general guide, and every relationship and individual has unique circumstances. It’s always recommended to seek advice tailor-made to your unique situation. If this is something you’re interested in, contact our friendly staff to arrange a consultation.
Eugene Gramelis, Principal Lawyer
and Matthew Mangiapane, Paralegal
Gramelis Attorneys