Test for separation under the one roof

Test for separation under the one roof

The Federal Magistrates Court has recently set down the test for separation under the one roof. This approach is consistent with cases that talked about the change of the living nature of the relationship [the jargon is consortium vitae] having unambiguously changed, so that there could be a point when someone looking from outside could say: “Ah ha. They have split up.”

This happened in Wilson v Wilson, where Federal Magistrate Lapthorn was confronted with that rare creature- the contested divorce.

The issue that his Honour had to tackle was the date of separation. If it were the husband’s, then there was 12 months of separation. if the wife’s there was less than 12 months. Ultimately his Honour found that the husband had not established the 12 months, and dismissed the application.

His Honour set out the test for separation under the one roof:

When parties have separated under the one roof it is often difficult to determine at what particular point they separated especially if they have been experiencing marital difficulties for a lengthy period of time. In many instances married couples will have had discussions about separating but take some time before they actually arrive at the point of separation. Indeed in the course of those discussions a party may even say the marriage is over but not act on that statement for some time. For there to be a separation there needs to be not only the communication of the fact from one party to the other but also some action to confirm that intention. In cases where a party moves out of the matrimonial home it may be said that that move is both communicated and acted upon depending on the circumstances. When the parties remain under the one roof however the court would need to be satisfied that there has been an intention to separate by at least one person followed by a communication of that intention with some form of action following the communication to confirm the intention. Federal Magistrate Maguire in Aitken & Deakin held the view that the communication needed to be unambiguous and unconditional. Her Honour considered the test of the element of communication to be an objective one. With respect I agree. (emphasis added)

Things to Read, Watch & Listen

Embracing Wellness in Your Daily Routine for Fertility

American guest author Ashley Taylor has written an interest article about having a holistic approach to maintaining your health and addressing fertility issues: In the journey toward maintaining your health and addressing fertility issues, embracing a holistic approach is key. Wellness is more than just a goal; it’s a sustainable lifestyle that intertwines various aspects… Read More »Embracing Wellness in Your Daily Routine for Fertility

Consultation open: Queensland Assisted reproductive technology industry

The Regulation of Assisted Reproductive Technology Services Consultation Paper is now available and open for feedback until 25 February 2024. This follows the Minister for Health, Mental Health and Ambulance Services and Minister for Women’s commitment to regulate the assisted reproductive technology (ART) industry in Queensland by 2024. The paper is designed to help inform considerations for regulating… Read More »Consultation open: Queensland Assisted reproductive technology industry

Honouring Excellence in the Legal Profession: Queensland Law Society President’s Medal

The Queensland Law Society (QLS) President’s Medal holds significant prestige within the legal profession as it recognises exceptional solicitors who have made remarkable contributions to their field and the community. Last year, the Director of Page Provan, Stephen Page, was bestowed with this esteemed award, which is carefully judged on service to the community, legal… Read More »Honouring Excellence in the Legal Profession: Queensland Law Society President’s Medal

Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board