Determining an accurate separation date is an essential step in a de facto property settlement. Did separation occur when you or your former spouse moved out of the house or is it possible to be separated whilst  continuing to live in the same house?

For a “separation” to be formally recognised, the following 3 elements must be established:

  1. An intention to separate;
  2. Acting upon that intention; and
  3. Communication of that intention to the other party.

The process for determining a ‘date of separation’ is the same for a de facto relationship as it is for a marriage. The above may seem straightforward, however, in reality it is often difficult to establish and is a significant point of contention.

Separated but living under one roof

There are many reasons why a separated couple may remain living together. Such examples include the following:

  • Financial – people often cannot afford to pay rent and/or mortgage repayments for two separate households;

  • Children – people may remain living under one roof to give children stability and to share the parenting responsibilities;

  • Property – people may remain living together until they can finalise any property settlement involving the family home and who gets to remain living there; or

  • Convenience – it is difficult and expensive to set up a second home so it may be more convenient for couples to remain in the same property for a period.

We often hear of couples disagreeing on the date of separation, because they separated whilst under one roof. Separating under one roof can be a “grey area”, particularly if you are living together and the separation occurs over a period of time, making it unclear to either party what the ‘date’ of separation is.

How to establish a separation under one roof is not easy. There needs to have been a demonstrated and fundamental breakdown of the
core components of the relationship such as separate;

  • finances;
  • sleeping arrangements; and
  • Domestic tasks.

It is important to obtain legal advice early in order to assess your options and ensure you are informed about where you stand.

At Pippa Colman & Associates Law Practice, we specialise in family law. Please contact us today on 5458 9000 if you would like to discuss your family law matter.


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