The law recognises that often following separation there is a need for a couple to remain resident `under one roof’. Despite the continued residence, it is still possible to pursue a divorce application which relies on evidence of more than one (1) year of separation, which has included a period of continued cohabitation. The Court will however require further information than it would if both parties had lived separately for at least 12 months. The Court will have to be satisfied that the requirements for divorce are met, namely that there was a period of 12 months that both parties lived separately from each other, and that there is no reasonable likelihood of resuming married life.

Proving separation where both parties reside in the same residence is often done by presenting to the court evidence of:

  • A change in sleeping arrangements;
  • A reduction in shared activities;
  • A decline in shared household duties;
  • The dividing of shared financial accounts;
  • Any notifications made to Government Departments or Institutions;
  • The notification of family and friends of your separation.

Example: A and B separate, but neither can afford to leave the matrimonial home. B moves into the spare room. A and B also no longer see each other outside of incidental meetings in the vicinity of the house. A and B also do their own laundry, ironing and prepare their own meals. Their friends and family know of their separation, and B has created a separate bank account that B now uses for income and expenditure. A Child Support Assessment has issued and A has advised Centrelink that she has separated from B.

Giving It Another Go
Any attempt to resume the marital relationship for a period of up to 3 months will not force the parties to start again when it comes to the 12-month period requirement. It can sometimes be difficult to gauge when a relationship officially begins again, but factors such as those mentioned above can play a significant factor in determining when the relationship resumed and for how long.

Example: A and B have decided to separate. After living separately for 6 months, A and B decide that perhaps they should try to reconcile their relationship. A and B resume their relationship but separate again after 2 months. A and B do not have to begin their 12 months separation anew, but may pick up where they left off 2 months ago. This means that A and B must continue to live separately for another 6 months before they will meet the 12 month requirement.

Seek Legal Advice
For further advice on the legal requirements of divorce and the technicalities surrounding separation and living arrangements, contact Best Wilson Buckley Family Law Toowoomba on (07) 4639 0000 or Best Wilson Buckley Brisbane on (07) 3210 0281.