Spousal Distancing - Separation under one roof during the Covid-19 pandemic

The days of proving fault in order to seek a divorce are thankfully long gone. The Family Law Act 1975 established the principle of no-fault divorce in Australian law. The only condition required to be met for a divorce is the irretrievable breakdown of the relationship, which is demonstrated by 12 months of separation.

Some parties cease living together at the date of separation.

In many instances though, a relationship breaks down and for a variety of reasons, the parties although agreeing to have separated, continue to live together.

No doubt you have read the alarming reports about the likely increase in Family Violence during the current Covid-19 restrictions and the parallel concern that currently family violence support organisations, including our local Centre for Non-Violence are experiencing a dramatic reduction in enquries which suggests people are feeling stuck in relationships at present.

Situations where there is family violence require very specific advice and support. If you are in that situation you should not hesitate to contact the support services listed at the end of this article.

But what about where separation is a joint decision with no violence? It doesn’t take too much to imagine that the current 24/7 life together households are experiencing could accelerate couples reaching the decision that their relationship has come to its natural end. What is the legal effect of that?

Firstly, it is important to understand that there is nothing official you need to do to mark your separation – there is no formal document to sign or register of separation.

Most people understand when they have separated because they have that difficult conversation. Less commonly, it may be that the realisation of separation happens over time and in those situations, it may be necessary to apply the legal definitions to determine what was the date separation occurred.

There are a few situations where it may be necessary to form a view or for a court to decide what was the date separation occurred. These include:

• To consider whether contributions made to the value of property were made during the relationship or after separation
• To consider whether a debt was incurred unilaterally by one party after separation
• To argue that amounts spent by one party should be “added back” to the pool of assets to be divided
• To consider how to treat an inheritance or gift received
• To establish the grounds for divorce (having lived separately and apart for 12 months)
• To determine when the time limit for bringing an application for a property settlement for a defacto relationship applies

In these uncertain and challenging times, physical separation may seem unsuitable as it can create financial and logistical complications. With there already being significant disruptions to the normalities, parties may be reluctant to further complicate their lives and instead see the benefit of the stability and consistency of remaining in the shared home with their former spouse. Further, the availability of suitable alternative accommodation or the added impracticalities of trying to operate two households particularly where children are involved and adherence to quarantining measures may seem all too difficult.

Separation under one roof is addressed in section 49(2) of the Family Law Act which states:

“parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other”.

Separation under one roof occurs where at least one of the parties to a relationship starts living as if they are separated. Separation under one roof can include:

• a change in sleeping arrangements, such as one party moving into a different room
• telling friends or family or others that you have separated
• a decline in intermingling or performing of usual household tasks for each other
• a separation of finances and the use of separate bank accounts
• spending time with children separately from a spouse and a reduction in shared activities or family outings
• notifying Government Departments (for example: Centrelink, Medicare) of a separation
• the ceasing of a sexual relationship

Parties can still be considered to be separated under one roof where they continue to provide household assistance such as cleaning or cooking meals for one another.

Consideration would be given to all of these factors and the individual facts and circumstances of what occurs post-separation in particular relationships. Documenting the changes that have occurred since separation can provide useful evidence. It can also be beneficial for a party to confirm their intention to separate in writing such as a text or email.

Separated parties whom remain living under the same roof (or lived under one roof during 12 months separation) are required to file additional evidence in support of their Divorce Application, to establish that they have been separated for the requisite 12 month period. The Federal Circuit Court of Australia rules require that an Applicant file an Affidavit (being a sworn statement setting out facts) made by one or both of the parties and of another person outside of the relationship such as a friend or neighbour.

There is also no requirement that parties need to be separated for 12 months before pursuing other aspects of family law matters including property matters or children’s matters and our family law team are available to advise in relation to all such matters.

Because so much can hinge on the date of separation, it is vital that you obtain legal advice regarding your separation promptly. Currently OFRM are able to provide comprehensive and of course confidential advice in an initial appointment which can take place via zoom video conference or phone. You can find out more about our initial appointments and book an appointment here.

Please do not hesitate to contact one of our family lawyers if you require any assistance with your family law matters in these challenging times. You can find contact details for our family lawyers here https://ofrm.com.au/our-team

If you need assistance as a victim of family violence, or because you are concerned about your own behaviour, we highly recommend the resources suggested by our colleagues at the Centre for Non Violence

If you have any questions about how to stay safe, access support or support someone experiencing abuse, CNV website provides some useful information and they can also be contacted on 1800 884 292 throughout Bendigo and the Loddon area.

The 24-hour statewide safe steps Family Violence Response Centre crisis response line is 1800 015 188. In an emergency, call 000.