“My partner and I have agreed to separate, but neither of us are in a position to move out of the residence until such time as we sell our house. Can we be considered legally “separated” if we are still residing together under the one roof?”
This is a common question. And yes, a couple can be legally separated, while still residing “under the one roof”.
There are many circumstances in which a couple may decide to separate under the one roof.
Usually, this is for financial reasons. The parties may not be able to afford separate rent if they have already have substantial mortgage commitments. Or they might decide it is in the best interest of the children if they continue to live under the one roof for a time. Or perhaps the parties may not wish to move out until a formal agreement has been reached on division of the property and how the family home will be dealt with.
Whatever the reason, the law in Australia recognises that a couple can be considered to have “separated”, even though they may still be residing in the same residence.
The intention of the parties is key: One or both of the parties must intend to sever the relationship, and the parties need to physically separate and thereafter live separately and apart.
If living under the one roof, physically separating may entail moving into separate bedrooms and disentangling finances, for example, by closing joint bank accounts.
What the court says
The case of Wilson and Wilson  provides some useful clarification about separation under the one roof from a legal perspective:
When parties have separated under the one roof it is often difficult to determine at what particular point they separated, especially if they have been experiencing marital difficulties for a lengthy period of time.
In many instances married couples will have had discussions about separating, but take some time before they actually arrive at the point of separation. Indeed in the course of those discussions a party may even say the marriage is over, but not act on that statement for some time.
- the communication of the fact from one party to the other; but also
- some action to confirm that intention.
In cases where a party moves out of the matrimonial home it may be said that that move is both communicated and acted upon depending on the circumstances.
When the parties remain under the one roof however the court would need to be satisfied that:
- there has been an intention to separate by at least one person followed by a communication of that intention;
- with some form of action following the communication to confirm the intention [ie. moving into a separate bedroom etc].
Federal Magistrate Maguire in Aitken & Deakin held the view that the communication needed to be unambiguous and unconditional.
For all these legal complexities, in reality, it is highly unlikely a separating couple will need to “prove” the date of separation to a court of law, as was the case in Wilson and Wilson and others.
However, for practical purposes, you will need to have a separation date to inform relevant agencies such as Centrelink and the Child Support Office (if applicable).
If you later decide to file for divorce, you will need to be able to state the date of separation on your application for divorce. This is because an application for divorce can only be made if the parties have been separated for at least 12 months and an officer of the Court will check your application to ensure this requirement is satisfied. So it is well worthwhile for you to record the actual date that you formed the intention to separate under the one roof and acted on that intention to separate by physically separating (ie. moving to separate bedrooms and separating your financial ties).