So fast-forward, your relationship has taken a turn for the worst, but you are still living under the same roof.
In this economy, it is no surprise that many couples want to stretch the budget and take time to work out what comes next. Whether you are choosing to live under the same roof with your former partner, or feel stuck for practical reasons, this decision is rarely made easily. School zones, rent, routines or the fear that ‘if I leave, I might not get back in’ may be part of your considerations. Whatever your motivation, it is important to know your options and make the right decision for you and your family.
Some families can maintain a good working relationship following separation. Others find that, over time, tensions grow and unspoken fears start to fester. If you find yourself in this situation, it is important to know what you may need to understand, not only the emotional landscape, but also what the law requires of you.
Living separated under the same roof is recognised by the Court in the context of divorce applications, interim spousal maintenance, and disputes about de facto relationships and property. In Australia, you must be separated for at least 12 months to be eligible to apply for a divorce, and you must show that the relationship has broken down irretrievably, with no real chance of resumption. Being separated under the same roof can create complexity if one party later argues that you are not really separated, or that the 12-month clock never started.
It is important that, while you are separated under the same roof, to communicate the separation to the other party either by words or behaviour. This is not to say that you must now split the fridge in half – their side and your side. The legal test is whether you were no longer living together on a genuine domestic basis. This can be demonstrated in many ways, for example:
- No longer attending social events together as a couple;
- Sleeping in separate bedrooms; or
- No longer pooling your finances in the same way (for example separate bank accounts and divided expenses).
Collecting evidence is important, particularly if a dispute arises about whether you were separated, or about the timing.
Why separation matters
Divorce applications (married couples)
- You must show 12 months’ separation and an irretrievable breakdown of the marriage, even if part of that period was spent under one roof.
De facto relationships – the 2-year property deadline
- De facto partners generally have two years from the date of separation to start property or maintenance proceedings in the Federal Circuit and Family Court of Australia (FCFCOA).
Recent case examples
Tanner & Reed [2025] FedCFamC2F 655
- In this case, the key issue was the true date of separation: one party said the relationship ended earlier, the other said it continued for longer while they were still living together.
- What mattered to the court is evidence of:
- how the parties lived,
- when they communicated the relationship was over and
- whether their behaviour matched a separated couple.
Fairbairn v Radecki [2022] HCA 18
- In this High Court case this issue was about when a de facto relationship has actually broken down, especially where illness and unusual living arrangements complicated the matter. The key issue was whether the elderly parties had separated.
- In this case:
- Physical separation was not sufficient in of itself,
- Living apart due to illness or age is not automatically a separation,
- The court looked to the parties’ conduct to show whether there was a mutual commitment to a shared life.
How KPA Lawyers can assist with separation under one roof
Separation under one roof is increasingly common, but it can create real uncertainty about when you “officially” separated and what that means for divorce, de facto property claims and spousal maintenance. Early advice can help turn a stressful living situation into a planned transition.
Early advice can assist by:
- Understanding the full relationship and financial landscape
- Clarifying the legal status of your relationship
- Identifying key risks and time limits
- Plan and document your separation under one roof
- Understand your options for formalising outcomes, such as Binding Financial Agreements, consent orders and Parenting Plans that take your current living arrangements into account.
At KPA Lawyers, separation under one roof, de facto property settlements and related financial matters are approached with careful strategy and practical focus. We recognise that no two families are the same, and your advice should reflect the particular way you live, separate and plan for the future. Our family law specialists can provide you with legal advice on your specific situation.
