Lonely man stands before the window in a room
John Molnar

John Molnar

Satisfying the ‘Separation’ Element for a Divorce Under the ‘One Roof’

This article has been authored by John Molnar of our firm with the assistance of Christian Gorman from our Paralegal team.

Applying for a divorce is often stressful, emotionally exhausting and the last course of action sought in a marriage. When the divorce process is coupled with the COVID-19 pandemic everything can seem overwhelming. This can be especially so for couples that are seeking a divorce whilst living under the same roof. In order to establish grounds for a divorce there needs to be ‘separation’ between you and your partner for a continuous period of 12 months. This does not necessarily need to happen under two roofs.

Before applying to the Federal Circuit Court of Australia (‘FCCA’) you need to have a valid reason as to why you and your partner have continued to live under the one roof during some part of the alleged period of separation. Without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down[1].
There is no formal, minimal extent to which you and your partner may live together and yet still have separated. This is a matter of fact and degree in every case.
The test that has been applied is ‘whether or not you and your partner have in fact established separate households, albeit the same roof covers both’.[2] To comply with there must be some overt separation – some evidence that there are two households, not one.

The party or parties that are alleging separation must satisfy the court by explaining why they continued to live under the same roof. Must also show that there has been a change in the relationship, gradual or sudden, constituting a separation. The most effective or clear way in establishing that change is through open communication so both parties can identify a specific point in time the relationship changed. This will result in there being no delusions as to the separation on the part of the other spouse.

When trying to create a separate household under the same roof positive steps to take can be to ensure you sleep in different bedrooms, not have an intimate relationship and no longer socialise together with friends[3]. These steps will help ensure that the difficult and stressful process of divorce is minimised as much as possible and you should seek legal advice when considering divorce.

Our team are ready to assist you with any Family Law matter.

[1] In the Marriage of Pavey (1976) 25 FLR 450.

[2] In The Marriage of Wiggins (1976) 9 ALR 8

[3] Family Law Act; 1975 (Cth) s 48(2); Marriage of Hodges (1977) 2 Fam LR 1 1,524; Marriage of Falk (1977) 3 Fam LR 11,238; FLC 1190-247

Share this post

Share on facebook
Share on google
Share on twitter
Share on linkedin
Share on pinterest
Share on print
Share on email

Kickstart your


Partnership Opportunities

At Midwinters, we understand the power of partnerships. Through diversity of thought and experience, we can work together to strategically support our clients and communities.

Need Advice?

With a commitment to excellence and offices Australia wide, Midwinters provide strategic advice for all your legal needs.