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Getting a divorce if we live in the same place

A client was in our office yesterday asking if it was possible to get a divorce from her husband despite living in the same house. We said absolutely she could however the process was a little more complicated.

Getting a divorce with your spouse whilst living in the same house (known as separation under the same roof) is definitely possible. However there are a few extra requirements a court needs to be made aware of before they go ahead and grant your divorce. It is strongly advisable in this situation to get legal advice on how to draft and file your divorce.

Proving you were separated for the 12 months immediately before filing for a divorce is the first requirement and this is usually done by filing an affidavit with your divorce application. An affidavit is a written statement which you take under oath or affirmation and which is used as evidence by the court. It contains information such as when you separated, what things were like leading up to your separation and even details about when your sexual relationship ended.

Your affidavit must prove to a court that your relationship has ended and that there is no likelihood of getting back together. There is a real art to putting together an affidavit in the correct format and courts reject them if they are not drafted properly or are drafted poorly.  It is important to have a Lawyer draft your affidavit to avoid delay to your divorce application.

To ensure your divorce is granted without a Court delaying it due to uncertainly, is it advisable to get an additional affidavit from another person (who is not your spouse). So, a friend or relative who knows you well and can provide details in their affidavit in support of your divorce. For example providing details about the conversation they had with you about when you first broke up. We always tell our clients when you make the decision to split with your Spouse, make sure you tell family and friends as they may need to provide a statement later down the track.

Courts usually have no problem granting a divorce despite you living in the same place as your Spouse. However, the court must be satisfied your marriage has come to an end and your affidavit/s + divorce application must be in the correct format so they are accepted by the court.


Article provided by Jeremy and Stephanie Maspero

Need help managing your divorce or drafting your affidavit?
With 30 + years of family law experience – contact Maspero Legal today on 8052 3322 or email [email protected]

Author: NBMs

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