Yes, under Australian family law, a couple can be legally separated while still living under the same roof. This is known as "separation under one roof", and it is recognised under the Family Law Act 1975 (Cth).

Separation occurs when at least one party communicates that the relationship is over, and both parties start living separately, even if they remain in the same household.

However, if a party later applies for divorce, they may need to provide evidence to the Federal Circuit and Family Court of Australia (FCFCOA) to prove that separation actually occurred while living together.

What Are the Consequences of Living Under the Same Roof After Separation?

Living under the same roof after separation can have practical, emotional, and legal implications:

✅ Financial and Practical Reasons for Staying in the Home

Many couples remain in the same house for reasons such as:

• Financial constraints – One or both parties cannot afford to move out immediately.
• Childcare responsibilities – Parents may want to provide stability for children before finalising arrangements.
• Waiting for property settlement – The home may need to be sold or ownership determined before either party can leave.

💡 While living together post-separation is common, clear boundaries must be set to establish that separation has occurred.

🚨 Legal and Emotional Challenges

Living under the same roof can lead to:

• Increased tension and conflict, making negotiations difficult.
• Legal disputes over property, financial responsibilities, and parenting.
• Delays in property settlements, particularly if one party refuses to leave the home.

Proving Separation While Living Under One Roof

If a couple remains in the same house but later applies for divorce, they must prove to the court that they were genuinely separated for at least 12 months. This may involve:

📑 Providing a sworn affidavit – Both parties may need to submit statements outlining:

• The date and reason for separation.
• Changes in sleeping arrangements (e.g., separate bedrooms).
• Reduction or cessation of sexual activity.
• Separation of finances (e.g., individual bank accounts, splitting of household bills).
• Lack of social interaction as a couple (e.g., no longer attending events together).
• Informing friends and family about the separation.

💡 If only one party applies for divorce, they must provide additional evidence, such as witness statements from friends, family, or professionals (e.g., counsellors or doctors) to confirm that the separation is genuine.

Exclusive Use of the Property – When One Party Wants the Other to Leave

If living together becomes untenable, one party may apply to the Family Court for an order granting them exclusive occupation of the home. This means that one party can legally remain in the house, and the other must move out, even if both parties jointly own or rent the property.

What Does the Court Consider When Granting Exclusive Occupation?

Under the Family Law Act, the court considers:

✔️ Best interests of children – If children live in the home, the court prioritises their stability and welfare. The parent with primary care may be more likely to remain in the home.

✔️ Financial ability of each party – The court examines whether both parties can afford alternative accommodation.

✔️ Evidence of domestic violence or safety concerns – If there is family violence, the court may grant exclusive use to protect a vulnerable party.

✔️ Ownership or legal interest in the home – If the home is owned by one party, this may affect the decision. However, ownership alone does not automatically grant exclusive possession.

✔️ The practicality of cohabitation – If constant conflict or emotional distress arises from living together, the court may order one party to leave.

💡 If exclusive use is granted, the other party may still have financial claims to the property during settlement.

Property Settlement and Exclusive Occupation

• The right to live in the home does not determine who will own it after property settlement.
• Even if one party moves out, they do not lose their financial interest in the property.
• Property settlement considers all financial contributions and the future needs of both parties.

💡 If exclusive use is granted, the party staying may need to compensate the other financially, depending on the final property settlement.

What Should You Do if You Want to Stay or Leave the Property?

🔹 Try to negotiate an agreement with your ex-partner.
🔹 Seek mediation if disputes arise.
🔹 Apply for an exclusive occupation order if cohabitation is unsafe or impractical.
🔹 Get legal advice to protect your rights during property settlement.

Conclusion

• Yes, you can be legally separated while living under the same roof, but you may need to prove separation to the court.
• Living together after separation can lead to legal and financial disputes, so clear boundaries are essential.
• If one party wants the other to leave, they can apply for exclusive occupation, but the court will only grant it based on safety, children’s best interests, and financial ability.
• Property settlement and ownership are separate issues—leaving the home does not mean losing financial rights to it.