The decision to dissolve your marriage is not an easy one to make. But before you can apply for and get granted a divorce, Australian law requires you and your spouse to be separated for at least a year. Here is where it can get complicated for some couples who still live together. So does this mean that you cannot get divorced if you are unable to move out? Although the answer is no, you'll need to keep several things in mind. To help you understand more about this living situation, here is all you need to know about getting a divorce while still living under the same roof with your ex-spouse.
What scenarios would necessitate living with your ex while separated?
Each individual situation is vastly different when it comes to couples living together as they dissolve their marital union. A few of the most commons scenarios include not earning enough money to rent a property by oneself, sharing the burden of the utilities, having one spouse in the home to care for young kids and so on. Fortunately, the courts do recognise that a separation does not exclusively refer to physical dissociation between the individuals. Instead, the burden will lie on the parties to prove that they have not been cohabiting during this separation period if their divorce application is to have any validity.
What does the court refer to as cohabitation?
In simple terms, the court's translation of cohabitation is that you and your spouse are residing in the same home as a couple rather than being actively separated. Thus, if you are still having sex, even on an occasional basis, spending time together as a couple by going out for dinner and a range of other activities, it can be construed that there is room for the relationship to be rekindled. If you are intent on getting a divorce, it would be essential to prove that even while living together that your interactions are limited to domestic tasks, for example, household chores, cooking and so on, rather than one-on-one quality time.
How can you prove you and your spouse are not cohabiting?
Proving that you and your spouse have not been cohabiting during the separation period can be tricky, and this is why you would need the expertise of a divorce lawyer to help you come up with evidence to support the fact that you have remained separated. Your divorce lawyer will help you outline an affidavit clarifying various aspects that illustrate the scope of your interactions and the lack of a romantic relationship. Some of the details that can be included in this separation affidavit include the cause and date of the breakup, reasons behind living together, allocation of household responsibilities, sleeping in different bedrooms, family members or friends that know of the separation and more.