Separation Under One Roof

The COVID-19 pandemic has impacted many areas of our everyday life. In the early days of the pandemic most of us were forced to work from home in the interest of social distancing. One impact of the forced “lock down” and necessity to work from home has been a shift in the normalisation of remote working. Some businesses are questioning what this might mean in the long-term and whether a “hybrid” way of working may eventuate, with people dividing their time between working from home and in the office.

Where does this leave couples separated under one roof? Or people contemplating separating but required to stay living and working separately and apart in the same home?

Firstly let’s look at the three elements required to establish that you have separated:

  1. One party must form an intention to separate;
  2. The intention to separate needs to be communicated to the other party; and
  3. change in behaviour occurs.

In the context of the current stressors experienced by many families, it is likely that there will be a spike in people forming an intention to separate from their spouse or de facto partner.

There is also likely to be a spike in communication between spouse and de facto partners advising of their wish to separate. Some of those communications will be made in haste and retracted. Others will be heartfelt, considered and acted upon.

So this leaves us with the third element i.e. establishing evidence of a change in behaviour.

Continuing in a bad marriage is different to living separately and apart under one roof after separation.  Things must change in order to prove that you are now separated under one roof.  What sort of things can change and how can you provide evidence of this given the likelihood that “working from home” is here to stay?

Ordinarily to show you are separated but living separately and apart, you need to be able to say a number of the following things have occurred:

  1. You are no longer intimate
  2. You are no longer holding yourself out in public and to your friends and family as a couple. This is somewhat difficult in the context of social isolation, however consider removing yourself or your spouse from group chats or other social media platforms;
  3. You reduce the amount of shared activities or family outings you attend together;
  4. Tell your family and friends that you are now separating. This is reasonably easy and perhaps more so to the extent that working from home reduces our commute time and leaves us with more time on our hands to connect and communicate;
  5. You no longer provide mutual support and domestic services to each other. The impact of COVID-19 on this particular element is likely to be mixed.  On the one hand it is easy to distance yourself and no longer wash, clean or cook for your spouse (who may occupy a separate part of the home).  However more difficult if you are say relying on the other person to shop for you because you are especially vulnerable or wishing to completely self-isolate to protect a vulnerable member of your household;
  6. Changes to your households’ finances

After separation, people may discontinue or limit the use of a joint bank account or a joint credit card.  The rise in unemployment and underemployment and for some an uncertain security of employment may result in this being difficult to achieve.  What do you do?  The most important message is to look to make changes to the current arrangements.

There are a number of circumstances which could arise in family law matters which would require someone who has been separated under one roof to provide information to the Court to establish that separation has occurred. An example of when this may become relevant is in circumstances where a couple has been separated under the same roof and wish to apply for a divorce, they may need to provide extra information to the Court which explains that even though you remained under the same roof, you were indeed separated.

As we learn to adapt to a new way of living and as working from home becomes normalised, family law will also adapt and separation under one roof will see evidence of it occurring like it has never done before.


Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore.  If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

About the Authors

Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist, a Collaboratively trained Family Lawyer and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.  Connect with Lisa on LinkedIn: Lisa Wagner | LinkedIn

Joanna Wilcox is a Senior Family Lawyer at Doolan Wagner Family Lawyers. Joanna has worked in Family Law since 2016. She has worked as an Associate in the Federal Circuit Court to Judge Dunkley as well as holding the position of Legal Associate to Justices Hannam and Foster in the Family Court of Australia. In this role she worked closely with the judicial officers on complex property and parenting matters, including Hague Convention cases and international relocations. Throughout her time as an Associate in both Courts Joanna has gained invaluable insight into judicial decision-making and is experienced in drafting complex court orders and applying relevant case law to legal argument.  Connect with Joanna on LinkedIn: Joanna Wilcox | LinkedIn


