Separated Under One Roof

When a couple separates, in many cases the ex-partners can remain living together. This can be for a variety of reasons, such as financial reasons, to make custody of children easier, or for convenience. This arrangement is called “separated under one roof”.

Separation defined

A couple is defined as two people either married or in a de facto or registered relationship. A person is considered to be separated when there is evidence that the marriage, or de facto or registered relationship has broken down completely and the parties are living apart and separately permanently or indefinitely. The separation must be more than a physical separation, however; one or both parties must form an intention to end or to not resume that relationship and act on that intention.

Assessment of ‘separated under one roof’

A “Separated under one roof form” (SS293) must be supplied to Services Australia.

There are 5 factors the department considers when assessing the status of the relationship:

1. financial arrangements
2. the nature of the household
3. social aspects of the relationship
4. the presence or absence of sexual relationship
5. the nature of commitment

Both parties can be interviewed and asked to provide additional information about their living arrangements when claiming they are separated under one roof.

Financial

Home ownership is considered, including payment of a mortgage, whether the home has been put for sale, and whether one party pay rents or board. The payment of household expenses and the existence of shared assets, joint bank accounts, joint debts and joint insurance policies are also considered, as is whether either party has nominated the other as a beneficiary under a will, superannuation or life insurance policy.

Nature of household

This aspect covers whether the parties share living spaces such as bedrooms and bathrooms, and how the parties carry out household tasks. The care of any dependent children, as well as whether child support arrangements have been made, is also considered.

Social aspects

Critical in assessing this factor is whether family, friends, banks and businesses have been made aware of the separation. Whether and how the former couple engages in social and leisure activities together is considered, including whether the ex-partners mix with their friends separately, and whether they holiday or spend Christmas together as a couple.

Services Australia requires evidence from a referee that verifies the relationship status.

Sexual relationship

The presence of a sexual relationship generally supports a conclusion the parties remain a couple. The absence of a sexual relationship does not necessarily support a conclusion a relationship has broken down.

Nature of commitment

This factor looks at the extent of a commitment the parties have to each other and the effort the parties have made to distance themselves physically and emotionally.

Indicators that are considered include:

• the length of time the parties intend to stay living together and why;
• whether an ex-partner is listed as an emergency contact at work;
• whether an ex-partner would provide support in circumstances such as illness, personal crisis, family disputes and child schooling events;
• the extent to which the parties share information and communicate with each other;
• the likelihood of reconciliation;
• any steps taken to legally end the relationship.

Divorce

To qualify for divorce, members of a couple must have been separated for 12 months.

If the members were separated under the one roof for all of some of that period, an affidavit is required from each person to support a divorce application. The affidavit must address changes in the relationship covering the 5 factors specified by the department. It should also explain why the parties continue living under the same roof while separated and any intention to change that arrangement, as well as living arrangements for any child of the relationship, and that government agencies have been notified of the separation.

If a member is making a divorce application on their own, they will need to provide an affidavit from themselves and one from another person who can attest that the couple is separated under the one roof, such as a family member or friend.

If the members of a couple are both living at the same address at the date of the divorce hearing, or intend to keep living at the same address, the court might not grant a divorce because it may consider there is a reasonable likelihood the relationship will resume.

Government payments

If either party receives a government payment, the payment will change because the party will now be considered single instead of part of a couple when the party is separated under one roof. A single person may be entitled to a higher payment.

For advice or representation in any legal matter, please contact Armstrong Legal.