People remain under the same roof for various reasons after separation. The reasons can be financial such as property settlement (waiting for a home to sell) or the inability to afford separate households due to financial hardship. To apply for a divorce and make void that marriage certificate, it is imperative to begin preparing financial and parenting arrangements, even if you are still living together while applying for a divorce, or waiting to move out until after the divorce hearing is complete and the divorce order is given.
Can I file for divorce if we still live together?
Yes, you can get a divorce even if you are still living under the same roof or have lived together for a portion of the 12-month period following your separation. Many jurisdictions allow for this scenario as long as you can prove that you and your spouse have been living separate lives despite sharing the same residence. This may involve demonstrating a lack of shared activities, separate sleeping arrangements, and minimal to no financial interdependence during the separation period. Each state or country may have specific requirements, so it’s important to check local laws and possibly consult with a legal professional to understand the nuances applicable to your situation.
How to start divorce proceedings while we still live together?
You will go through the normal process of divorce; however, you will need to file supporting affidavits in your divorce application that satisfy the court that you are living separate lives. The affidavit should address the following points:
- Change in Sleeping Arrangements: Clearly indicate that you and your spouse no longer share the same bedroom.
- Reduction in Shared Activities or Family Outings: Provide details on how you have reduced or ceased participating in activities together as a family or as a couple.
- A Decline in Performing Household Duties for Each Other: Explain any changes in how you handle household chores and responsibilities, showing that you no longer perform tasks for one another as you did when the marriage was intact.
- Division of Finances: Demonstrate financial independence by providing evidence of separate bank accounts, credit cards, or other financial arrangements that indicate a lack of financial interdependence.
- Any Other Matters that Show the Marriage Has Broken Down: Include any additional evidence that supports your claim of separation, such as notifying family and friends about your separation, changes in social behaviour, or any relevant changes in personal circumstances.
By addressing these factors in your affidavits, you can effectively demonstrate to the court that your marriage has irretrievably broken down, even if you are still living under the same roof. It is advisable to consult with a legal professional to ensure that your affidavits are thorough and comply with local legal requirements
How do you apply for a divorce under the same roof if the other party won’t write the affidavit or sign the divorce paper?
If the other party is unwilling to write an affidavit or sign the divorce papers, you can still obtain a divorce. In such cases, you will need to provide evidence from a friend or adult family member who can corroborate that you have been separated for at least one year. This third party will need to provide an affidavit supporting your claim of separation.
What Evidence Do You Need to Provide to Prove That You Have Separated?
You will be required to provide evidence that demonstrates you and your former spouse have separated, even if you are still living under the same roof. Examples of such evidence include:
- Ceasing Sexual Activity: Show that you and your spouse no longer engage in a sexual relationship.
- Living in Separate Rooms: Provide details and possibly photos to show that you and your spouse have separate bedrooms.
- Separate Financial Accounts and Expenses: Evidence of separate bank accounts, credit cards, and financial responsibilities. You can include bank statements, separate utility bills, and other financial documents.
- Being Open About Your Split: Demonstrate that you have been open about your separation with friends, family, and even neighbours. This can include written statements or affidavits from these individuals confirming their knowledge of your separation.
By providing this evidence, you can convince the court that you and your spouse have been living separate lives despite sharing the same residence. This will support your application for divorce under these challenging circumstances. Consulting with a legal professional can further guide you through the process and ensure that all necessary documentation is properly prepared and submitted.
What if we only live together for part of the time?
If you and your spouse only live together for part of the time, you will still be required to submit documents proving your separation under the same roof during those periods. The process involves demonstrating to the court that, despite residing together intermittently, you have maintained separate lives.
How To Start A Divorce – FAQs
How do I start the divorce process?
To start the divorce process in Australia, you need to obtain an application form from the Family Law Courts website (the Commonwealth Courts Portal), fill it out, and submit it to the court with any required supporting documents.
How to have a peaceful divorce?
A peaceful divorce can be achieved by focusing on an amicable resolution, using mediation services, and taking care of your emotional health.
Do you have to be separated to get a divorce?
In Australia, you must be separated for at least 12 months before you can file for divorce. However, you can still live together if you’re separated under the same roof.
Do you have to file for separation before divorce?
You don’t have to file for separation before divorce in Australia, but you do have to provide sufficient evidence that you and your spouse have been separated for at least one year.
How soon can you file for divorce after separation?
You can file for divorce as soon as 12 months of separation has passed
When to file for divorce after separation?
It’s recommended to file for divorce after you’ve been separated for 12 months to ensure that the legal requirements are met.
How to be divorced and living together
Even if you’re divorced, you can continue living together if that arrangement works for you and your ex-spouse.
What do you need to file for divorce?
To file for divorce, you’ll need to fill out a divorce application form, which can be obtained from the Family Law Courts website.
How do I file for divorce in Queensland?
To file for divorce in Queensland, you need to submit a divorce application to the Federal Circuit Court or the Family Court.
My wife wants a divorce, but I don’t – can she file alone?
Yes, your wife can complete a sole application for divorce. In many jurisdictions, one spouse can file for divorce without the consent or cooperation of the other spouse. This process is known as a unilateral or sole application for divorce.
Key Points About Sole Applications for Divorce:
- Filing the Application:
- Your wife can file a sole application for divorce with the court. She will need to complete and submit the necessary forms and pay any applicable filing fees.
- Serving the Papers:
- Once the application is filed, your wife must serve you with divorce papers. This means you will receive a copy of the divorce application and any related documents. The papers must be delivered according to legal requirements, which often involve a third party or official service method.
- Response Period:
- After being served, you will have a specific period to respond to the divorce application. This period varies by jurisdiction but is typically around 30 days. If you do not respond within this time frame, the court may proceed with the divorce without your input.
- Court Proceedings:
- If you contest the divorce, you can file a response outlining your reasons and any issues you wish to raise, such as child custody, support, or property division. The court will then schedule hearings to address these matters. If you do not contest the divorce, the court may grant the divorce based on the information provided by your wife.
- Grounds for Divorce:
- Most jurisdictions now recognise “no-fault” divorce, which means that your wife does not need to prove any wrongdoing on your part. She simply needs to demonstrate that the marriage has irretrievably broken down, often shown by living separately for a specified period (e.g., 12 months).
- Legal Representation:
- While not mandatory, it is advisable for both parties to seek legal representation to navigate the complexities of divorce proceedings, protect their rights, and ensure a fair outcome.
Emotional and Practical Considerations:
- Communication:
- Open communication between you and your wife can help to address any misunderstandings and potentially lead to an amicable resolution, even if the decision to divorce is unilateral.
- Mediation:
- If you are willing, mediation can be a useful tool to negotiate terms of the divorce, such as asset division and custody arrangements, outside of court.
- Counselling:
- Consider individual or joint counselling to help manage the emotional aspects of the divorce process.
While your consent is not required for your wife to file for divorce, you have the right to respond and participate in the proceedings. It is crucial to stay informed and seek legal advice to understand your rights and obligations throughout the process.
How to start filing for divorce?
It’s difficult to go it alone. You can start filing for divorce as soon as you’ve been separated from your spouse for at least 12 months. However, take advantage of our experienced Cudmore Legal family lawyers who can guide you through the process.
How soon can I file for divorce?
You can file for divorce as soon as you’ve been separated for at least 12 months. You can submit a sole or joint application at this point.
How to get divorce before one year?
It’s not possible to get a divorce in Australia before one year of separation.
In what other areas can Cudmore Legal help?
Cudmore Legal services offer straightforward legal advice in:
