Article By: Enis Goktepe, Partner Cappello Rowe Lawyers Sydney

As federal and state governments continually change the liberties available to us in response to this pandemic, where we can go and for what reason is continually changing on a seemingly weekly basis.

Even if the gazetted restrictions allow for exemptions on moving residence, practical problems still arise for couples thinking of separating on a practical basis when finding suitable accommodation can be difficult.

Unfortunately, in some circumstance’s urgency outweighs suitability when looking for accommodation.

It is however, possible for a couple to separate while living under the same roof.

What is Separation? How Do I know I have separated?

Besides changing your social media status (which we will get to later), it can be complicated if both parties do not agree they are separated and are living under the same roof.

There is no legal definition available of what “separation is”, rather there are a number of factors to determine if a couple has separated, namely:

1. Has the couple agreed, or has one person communicate to the other, that the relationship has come to an end;
2. Does the couple, or one of them, consider themselves to be “separated” from the relationship;
3. Does the couple, or one of them, act as if they are “separated”; and
4. Do others view the couple as being separated.

The above questions, like many aspects of Family Law, are contextual based and depend on the behaviour of the parties. Common guiding questions are:

1. Has either party communicated to friends and relatives that they have separated?
2. Are the parties sleeping in separate beds?
3. Is the couple still intimate?
4. Are the parties attending functions as a couple (e.g. weddings or Zoom dinner parties in pandemic times)
5. Are the parties still maintaining joint finances?

Of course, given that each relationship is unique, the above is not an exhaustive list.

Do I need help?

There is no perfect time to get help, either through legal advice or otherwise, there are situations where it may be very beneficial to have legal assistance prior to deciding to separate and then there are others where you may need it late into the piece or not need at all.

Of course if you do feel you need help, legal advice can inform you of your rights and responsibilities pursuant to the law and family relationship centres or counsellors can assist with the feelings surrounding the separation.

What to do if you want to separate under one roof?

The announcement

Separation is a major step and a majority of people feel a huge sense of grief, particularly if it were to come as a shock to one party. The party receiving announcement of the separation can become angry, sad, depressed during the various stages of dealing with the announcement prior to accepting it.

Your first priority should be your safety during initial discussions about separation and perhaps seeking external counselling or psychological assistance if required for either or both of you. If either party becomes violent, calling police for assistance is recommended.

The practicalities

Next, you should have a discussion with your partner about how to practically manage any children or finances in the immediate term while beginning discussions about longer term arrangements. For example:

• How are you going to tell the children? Friends? Family?
• How are you going to spend time with the children?
• How are the household expenses going to be paid? Will they be shared?
• What is to happen to any joint assets?
• Do I change my Facebook Status?

Ultimately, it is possible to separate under the one roof and begin discussions and with an increasing number of resources available to assist remotely during this pandemic assistance is available to help guide people through the process.

Please don’t hesitate to contact us on 02 6962 3433 or via email at info@cappellorowe.com.au if you require any assistance – confidentiality is assured.