NSW Separation but Living under the Same Roof?

[Avengeline]

Hi all,

I am so glad I found this thread.

Last July, I decided to I want a divorce from my husband, but we are still living in an apartment (2-bedder) together. My friends are aware of my decision and they know that we have had problems for years and rarely did we show up in friends get together recently. Also I have always paid for my everything including rent and all my expenses as we both have separate bank accounts except for only a common credit card which we split the balance half/half every month on each due date.

We also have a property under both names and we both contributed for the mortgage 50%-50% up to now. We never received any aids from government except we have medicare cards. Plus fortunately or unfortunately, we don't have any kids.

I wonder if I can apply for separation under the same roof (after coming July of course) as I cannot be sure he will cooperate with divorce application lodgement together with me (he sometime says he wants to go on... ) given that I have not informed any public services (as I do not benefit from any). Will the fact that I have always had my own separate account and paid for my expenses be sufficient to account for the separation period as well?

Also given that the property (currently tenanted) is under the name of both of us , I wonder if it matters or if it could potentially cause any issues if we keep the property even after the divorce until a suitable time to sell it?

By any chance does anyone know a family lawyer who offers the first session for free. I do not have a complicated case so I don't want to pay for lawyers but I would like to get some opinions if someone could be help.

Many thanks in advance.

 

[sammy01]

You have to be separated for 12 months. So you can be separated under the same roof. You can make a sole application for divorce if he doesn't want to make a shared application. He would then have to front up to court and argue that you're still happily married. In all likelihood the divorce would be granted.

So after that you're gonna have to work out how to split up assets. It would be best to get that done by agreement. You need to understand that no agreement is legally enforceable unless you have both sought independent legal advice (solicitor)

 

[Avengeline]

Thanks Sammy for the response. I wonder how many of my friends would need to provide affidavit for me ? Is one enough ?
I wonder if getting one of my friend to sign an affidavit for me as well as documents which shows I paid for my expenses are enough to proof the separation under the same roof or I need to provide more?


Also, would family court or the process disclose to my husband who has provided me with affidavit as a witness for my application or it will remain confidential?

 

[Blessing]

Thanks Sammy for the response. I wonder how many of my friends would need to provide affidavit for me ? Is one enough ?
I wonder if getting one of my friend to sign an affidavit for me as well as documents which shows I paid for my expenses are enough to proof the separation under the same roof or I need to provide more?


Also, would family court or the process disclose to my husband who has provided me with affidavit as a witness for my application or it will remain confidential?

An affidavit filed will need to be served on the other party so they would know who prepared it, it can be one or two depending on the amount of information they can provide on your separation. You will need to prepare an affidavit yourself stating the circumstances, change in sleeping arrangements, social outing and reasons why you lived under one roof.

This is actually something that you can do yourself, the court cant deny you a divorce just because your ex says he doesn't want one, that is as long as you can meet the 12 months requirement. If you still do want a lawyer in Sydney area Lovemore lawyers do free consults, otherwise call offices close to you and explain the situation, some may be understanding and waive it (of course there may be conditions)

 

[Avengeline]

Thanks Blessing.

The reason why I did not leave was that I had liabilities for the mortgage of the property and also the rental agreement for the current place we're renting is also under our both names... So it was financially a bit hard for me to pay for another place and still paying for these liabilities too, as he said he would not pay the whole rent for current place.

Of course I might have been able to break our rental agreement but I was mentally broken and could not go through the hassle... I asked him to leave a couple of times and said to him if you leave I do not want you to pay the rent anymore, I will bring in a flatmate to pay your share but he did not leave (although he said he would... )

Not sure if this could be acceptable for court or I will just waste my application fee if I make a sole application based on this reason to live under the same roof ? Any ideas would be appreciated...

 

[Blessing]

Thanks Blessing.
The reason why I did not leave was that I had liabilities for the mortgage of the property and also the rental agreement for the current place we're renting is also under our both names... So it was financially a bit hard for me to pay for another place and still paying for these liabilities too, as he said he would not pay the whole rent for current place. Of course I might have been able to break our rental agreement but I was mentally broken and could not go through the hassle... I asked him to leave a couple of times and said to him if you leave I do not want you to pay the rent anymore, I will bring in a flatmate to pay your share but he did not leave (although he said he would... ) Not sure if this could be acceptable for court or I will just waste my application fee if I make a sole application based on this reason to live under the same roof ? Any ideas would be appreciated...

For most people that is the reason for doing so. Like I said, you can do most of it on your own but if you do want lawyer, contact here.

 

[Avengeline]

An affidavit filed will need to be served on the other party so they would know who prepared it, it can be one or two depending on the amount of information they can provide on your separation. You will need to prepare an affidavit yourself stating the circumstances, change in sleeping arrangements, social outing and reasons why you lived under one roof.

This is actually something that you can do yourself, the court cant deny you a divorce just because your ex says he doesn't want one, that is as long as you can meet the 12 months requirement. If you still do want a lawyer in Sydney area Lovemore lawyers do free consults, otherwise call offices close to you and explain the situation, some may be understanding and waive it (of course there may be conditions)

Hi Blessing...

If the affidavit signer will be disclosed then I am not sure if my friends are still willing to sign it for me as they might feel awkward (well, they're kind'a common friends with my husband too... ) ... I will definitely ask them again but in case they are reluctant to do that, would there still be a chance to proof separation under the same roof without a witness affidavit?

 

[sammy01]

You're making this unnecessarily difficult. File for divorce. Don't involve friends. They might knock it back they might not. If they do then wait 12 months and file again.

Look unless you're desperate to marry some other guy next week - what is the rush?

 

[Blessing]

Like Sammy says you are overthinking this a little too much.

Considering that the 12 months is not up yet just try not overthink it, its just a divorce, the court is not going to force you to stay married. All you need to prove the separation is state you lived separate lives, deal with finances separately, don't share a bed and haven't been a couple for 12 months

 

[Avengeline]

Like Sammy says you are overthinking this a little too much.

Considering that the 12 months is not up yet just try not overthink it, its just a divorce, the court is not going to force you to stay married. All you need to prove the separation is state you lived separate lives, deal with finances separately, don't share a bed and haven't been a couple for 12 months

Thanks Blessing.

Maybe you're right.. I should take it easier for now... But the questions were crossing my mind all the time, so I asked... Thanks anyway