Divorce factsheet 3 – Separation under the same roof

How to apply for a divorce if you’ve been living with your partner while separated

What does separation under the same roof mean?

The only legally accepted reason to get a divorce in Australia is that the marriage has

broken down irretrievably. This means that the court must be satisfied that you and your

spouse lived separately and apart for a period of 12 months immediately before the date

of applying for a divorce order. If you want to separate but continue to live together in the

same home for financial, parenting, or other reasons, this is called ‘separation under the

same roof’.

Separation under the same roof does not just mean sleeping separately. The Federal

Circuit and Family Court of Australia (FCFCOA) requires evidence that either you or your

spouse said the relationship was over and, from that time, you did not act like a married

couple, but you behaved like a separated person both inside and outside the home.

What if we have lived at the same address for some or all of the separation period?

If you and your spouse have lived at the same address for some, or all of, the 12 months

immediately before applying for divorce, you will need to also provide two affidavits

describing your separation when you file your Application for Divorce. An affidavit is a

written statement of evidence.

If you are still living at the same address at the time you apply for divorce, you will need

to explain what your plans are for living arrangements in the future.

What if we are still living at the same address at the date of the divorce hearing?

If you are both living at the same address at the date of your divorce hearing or intend to

keep living in the same home, the court might not grant your divorce. The FCFCOA cannot

grant a Divorce Order if there is a reasonable likelihood that your relationship will resume.

Showing the Federal Circuit and Family Court of Australia (FCFCOA) you have separated

In your Application for Divorce, you will need to record the date of your separation as

well as any periods of time that you lived in the same house as your spouse, since the

separation date.

The court will need two affidavits to confirm you and your spouse were truly separated

while still living together under the same roof.

Each person who writes an affidavit must be prepared to come to court. They may be

examined about the truth of their statement if the court requests this.

You must file the affidavits at the court registry counter or electronically on the

Commonwealth Courts Portal (www.comcourts.gov.au). For more information about how

to do this, see Factsheet 4: Filing your divorce documents online.

If you are applying on your own

(sole application for divorce)

You must prepare and file two affidavits:

  • one written by you and
  • one written by another person who

has seen or heard about you and your

spouse being separated under the

same roof (usually a family member

or friend).

If you and your spouse are

applying together (joint application

for divorce)

You must serve both affidavits on your

spouse with your divorce documents.

You must prepare and file at least two

affidavits. This can be:

  • one each by you and your spouse or
  • one from either of you and a third

person who has seen or heard about

you and your spouse being separated

under the same roof (usually a family

member or friend).

Writing your affidavit

An affidavit is your evidence put in a written statement which explains that you and

your spouse have been living separately under the same roof. It must explain what the

relationship was like before the separation date and how it changed after your separation

date.

Each marriage is different, so the information needed to prove that you were separated

under the same roof will be different in each case. This sample affidavit has many

possible sentences. Delete any that are not appropriate and include more information

where necessary. You are the Applicant and your spouse is the Respondent.

SAMPLE AFFIDAVIT:

  1. I am the Applicant Husband/Wife in these proceedings.
  2. I was born on [full date of birth] in [location] and I am [XX] years of age. I came

to Australia on or around [year] and I am now an Australian citizen (or state your

migration status).

  1. The Respondent Husband/Wife is [full name] (Write the name of the Respondent

and then use this name throughout the Affidavit where it says ‘Respondent’).

[Respondent] was born on [full date of birth] in [location] and is [XX] years of age

and is also an Australian citizen.

  1. [Respondent] and I met around [date] and were married on [date] in [location].
  2. [Respondent] and I separated on a final basis on [date], and we continued to live

at the same address at [address] from [date] to [date] until he/she/I moved out to

[address].

  1. There are [X] child/ren of the marriage. They are [list full names and dates of birth

and current ages for each child of the relationship, including stepchildren].

Our marriage before separation

  1. During our marriage, I cooked for [Respondent] and washed and ironed their

clothes (describe any other household tasks you shared or did for each other whilst

together).

  1. [Respondent] and I would visit friends and sometimes they would come to our home

(give examples).

  1. We also travelled as a family (give examples).
  2. We (had, have) a joint bank account and we (bought/rented) our home in our joint

names.

  1. During our marriage, we slept in the same bed and had a sexual relationship/we had

been living in separate bedrooms under the one roof for many years.

Marriage after separation

  1. Describe what happened on your date of separation. Did you have an argument on

the telephone? Did you have a discussion and decide how to tell the children and

family and friends? Were police or family members involved on that day? Did you

write text messages or emails saying the marriage had ended? State the facts as

best as you can remember. If you are reporting a conversation use direct language,

e.g. On [date], [Respondent] and I were at [location] and I remember we had a

conversation with words to the effect of:

Me: “This isn’t working, our marriage is over.”

[Respondent]: “I agree. I will move my stuff into the spare bedroom until I can

find my own place.”

Use the words that you each said (as far as you can remember) to show that

you believed each of you knew the marriage ended on that date.

Then, explain how the relationship changed from what it was before. For example:

  1. Since the date of separation [Respondent] moved into a separate bedroom.
  2. I continue to cook for our family but [Respondent] eats separately and often eats out

of the home.

  1. I have stopped washing and ironing [Respondent]’s clothes and doing other

household chores for [Respondent].

  1. Since separation, I have done my own shopping and washed my own clothes.
  2. [Respondent] and I no longer socialise as a couple and do not visit friends together

or celebrate family occasions like Christmas or birthdays together.

  1. [Respondent] and I have separate bank accounts and we split all our bills for the

children.

  1. [Respondent] and I do not usually speak to each other unless it relates to the

[children/household bills/discussions about moving].

  1. Around [date], I told my close friend [friend’s full name] who lives in [location]

that [Respondent] and I had separated. I remember I said words to the effect of

“[Respondent] and I have decided to separate since last month. I moved out to the

spare room and I need to find a new place to stay.”

  1. Since we became separated under the same roof, [Respondent] and I have not spent

time or socialised with each other except for the children’s birthdays. Sometimes we

have done things together for the home but it was as housemates, not as a husband

and wife.

  1. When we separated I told Centrelink/other agencies about the separation. Describe

how you informed Centrelink or other agencies about the separation.

Also describe when you or the other person moved out. For example:

  1. On [date], I moved to [new address] and [Respondent] and I divided our things. We

are currently working out a financial settlement between us with lawyers.

Or, if you can’t move, explain why you are still living under one roof.

Both [Respondent] and I receive Centrelink income and have applied to the Department

of Housing to find new accommodation. I have looked at the rental properties available

that are near to the children’s school, but they are [$dollars] per week and I only receive

[$dollars], so I cannot afford to move out yet.

Preparing a third-party or witness affidavit

You will need another person’s affidavit to support your statement about living separated

under the same roof. If you are making a joint application for divorce, the second affidavit

can be from your spouse. If you are making a sole application, you could ask any person

over 18 years old. This can be a friend, family member, co-worker or any other person

who has known you during the marriage and after the separation.

The third party or witness will have to explain in their affidavit what they experienced

themselves, first hand, about you and your spouse’s separation.

This template guide affidavit has many sample sentences. Delete any that are not

appropriate, and include more information where necessary.

SAMPLE OF THIRD-PARTY OR WITNESS AFFIDAVIT:

  1. I am the best friend/cousin/doctor/co-worker (describe your relationship) of the

Applicant [name you call the Applicant] in this matter. I have known [Applicant] for

[how long?].

  1. I was born on [full date of birth] in [location] and I am [XX] years of age. I came

to Australia on or around [year] and I am now an Australian citizen (or state your

migration status).

Describe how you met the [Respondent] and, if you attended the wedding, and

how often you spent time with the couple after they were married. For example:

  1. I often visited my friend [Applicant] at home. I was their wedding photographer. Our

children are the same ages and attended the same schools so we met almost every

day.

  1. When I visited their home, I noticed that both [Applicant and Respondent] would cook

together. I noticed they were sharing a bedroom when we travelled together.

  1. Around [date], [Applicant] came over to my house looking upset and said words to

the effect of “[Respondent] and I decided to separate last month. I moved out to the

spare room and I need to find a new place to stay.”

Describe what you have personally seen, heard or been told about the

separation. For example:

  1. I have not directly spoken to [Respondent] about what happened since they

separated. I remember I said words to the effect of “I was sorry to hear what

happened, I’m here if you want to talk”.

  1. Since their separation, I have visited [Applicant] and [Respondent] has not been

around when I have visited their home.

  1. When I visited the home, I observed [Respondent’s] clothes and computer in the

spare room, with blankets and a mattress on the floor. [Applicant] said words to the

effect of “I cook and clean for myself now”.

  1. A few months ago. I attended a friend’s wedding and I saw that [Respondent]

attended and the bride told me words to the effect of “I couldn’t invite [Applicant]

because everyone knows they just separated.”

  1. I understand from my observations and conversations with [Applicant/Respondent]

that they live separately and apart in the same home.

Tips for writing an affidavit

  • Divide the affidavit into numbered paragraphs.
  • Keep each paragraph short and deal with one issue per sentence only.
  • Be specific. State who, what, when, where and how. Provide exact dates wherever possible.
  • If you can’t be exact, make your best estimate.
  • When you are writing about what someone said, put it in quotation marks and use the phrase ‘words

to the effect of’. For example, you may write: Sam said to me words to the effect of “That’s fine.”

  • If you attach a document, refer to it in your affidavit and then write: ‘Annexed and marked with the letter ‘A’ is a copy of [DOCUMENT NAME]’ Write the letter ‘A’ at the top of the front page of the

document you are attaching. Each document you attach to your affidavit must be identified by

letters A, followed by B, then C, and so on.

  • Sign the bottom of each page of the affidavit in front of a Justice of the Peace (JP) or lawyer and

complete and sign the ‘jurat’ at the end of the affidavit. This is the statement that sets out when,

where, and before whom you have signed the affidavit.

  • If you have attached a document (annexure) to your affidavit, make sure the JP or lawyer who is witnessing the affidavit signs each document.
  • If you need to correct any errors, cross out the error and put your initials next to the change. The JP or lawyer who is witnessing the affidavit must also put their initials next to the change.

Need help?

LawAccess NSW

Provides free telephone legal information, advice and referrals to other services, including to your nearest Legal Aid NSW office, community legal centres, private lawyers and other organisations that can help.

1300 888 529

www.lawaccess.nsw.gov.au

Family Law Early Intervention Unit

The Family Law Early Intervention Unit (EIU) is a state wide specialist service of Legal Aid NSW. It provides free family law services in courts and community organisations throughout NSW.

Call 1800 551 589 or see

www.legalaid.nsw.gov.au/what-we-do/family- law/family-law earlyintervention-service.

The Federal Circuit and Family Court of Australia (FCFCOA)

You can get further information about court processes, forms, publications and Do-It- Yourself kits on the FCFCOA website www.fcfcoa.gov.au or by phoning the National Enquiry Centre (NEC) on 1300 352 000.

Public libraries

Public libraries have computers and scanners. You will need to make an appointment. See www.nswnet.net/libraries.

There are five factsheets in the divorce series:

Factsheet 1: Applying for divorce

How to get started

Factsheet 2: Serving your divorce documents

How to give your divorce documents to your partner

Factsheet 3: Separation under the same roof

How to apply for a divorce if you’ve been living with your partner while separated.

Factsheet 4: Filing your divorce application online

How to eFile your divorce application on the Commonwealth Courts Portal.

Factsheet 5: Serving divorce documents when your spouse is in prison

Special rules for giving divorce documents to your partner when they are in prison.

March 2022

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