Can I file for divorce while living with my spouse?

Published 28 May 2019

Occasionally, circumstances mean that you want to file for divorce while still living in the same house as your spouse. It's possible to do this, as long as you can prove that you've been separated for at least 12 months.

What you need to prove when filing for a divorce

There are certain requirements you need to meet before you can file for divorce. These are as follows:

  • You are actually married, under law. A marriage certificate, or an equivalent document, shows this. 
  • There is no chance that you and your spouse will get back together. Your marriage has to be irretrievable. 
  • You separated at least 12 months ago. 
  • You're either an Australian citizen or been living in the country for at least 12 months as a permanent resident.

Additionally, if your marriage has lasted less than two years, you need to attend counseling with the intent of considering reconciliation before you apply for divorce.

Proving separation under the one roof

If you've been, or still are, living together during the 12 months of separation, you need to prove what the Courts call 'separation under the one roof'. A part of doing this is filing an affidavit with your divorce application. Generally, it's wise to ask an independent person to file an affidavit along with yours. 

An affidavit is a written statement that you use to present information and evidence to the Court to support your case. You must have a lawyer or Justice of the Peace witness you swearing (or affirming) that everything you've included is the truth before you can submit it. 

In your affidavit, you need to:

  • Prove that you and your spouse have separated, and that there's been a change in the marriage as a result. 
  • Detail what changes have occurred, such as with sleeping arrangements, separating bank accounts and finances, shared activities, or notifying family and friends of the break. 
  • The reasons you're still living together despite the separation. 

If this written statement is accepted and confirms the required length of separation has occurred, then the process for filing for divorce continues. 

Separating from a spouse is often a difficult time, with a lot of legal matters that you need to consider. If you're considering applying for divorce, make sure you have the expert legal advice of Malouf Solicitors on your side. Reach out to the friendly and supportive team today to see what we can do for you

Please call us on 02 8833 2000 to speak with a lawyer

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Kim of Sydney

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