VIC Separation under 1 year

[Dexter07]

To help ascertain what the situation is exactly & keep this as simple as possible .. Answer these two questions
1) When you separated under one roof, was there a CLEAR understanding by BOTH of you that this was a separation? .... ie, you both decided to separate on that date?
2) What was the purpose of your spouses overseas travel?

Answers to point 1 and 2
1) We had our disagreement ( which had history ) and as there is no conversation between us after that. We started living in different rooms but there was nothing decided
2) As this is not working and we are not on talking terms so partner is going back to family home ( overseas)

Can it be one sided or both have to agree. As my partner neither wants to live together neither leave me.

 

[Atticus]

1) We had our disagreement ( which had history ) and as there is no conversation between us after that. We started living in different rooms but there was nothing decided

In the absence of any agreed date of separation (moving into different rooms in itself is not enough to satisfy the separation requirements) then you can't declare that date to be the beginning of your 12 month separation ...

Can it be one sided or both have to agree. As my partner neither wants to live together neither leave me.

You have to be separated for 12 months minimum... And that 12 months should begin from an agreed date or at least a date that the court is satisfied that separation began.... It appears to me that your spouse is not 100% clear that you have actually separated.... If that's the case, your spouse may well dispute that they believe that there is an irretrievable breakdown .... Being away from home may not in itself be accepted as separated if the other party is not of that opinion....

For example, you can't have a partner leave home for 12 months for whatever reason & then you file a sole application for divorce .... You can't get a divorce by stealth.

I think you need to have an honest conversation with your spouse & take it from there

 

[Dexter07]

To help ascertain what the situation is exactly & keep this as simple as possible .. Answer these two questions
1) When you separated under one roof, was there a CLEAR understanding by BOTH of you that this was a separation? .... ie, you both decided to separate on that date?
2) What was the purpose of your spouses overseas travel?

I have added the reason for points below
1) We have had our different opinions which led to us living in different rooms. But we did not decided it but it eventually became like that we both living separate no talking or anything no common activity.
2) Partner is going back to her family ( overseas) to stay away from me. I assume currently where our relationship is if we are more distant then dont think that is going to help.

My partner is not decided neither they want to be with me nor leave me. I am stuck in between with nothing just to wait

 

[Dexter07]

To help ascertain what the situation is exactly & keep this as simple as possible .. Answer these two questions
1) When you separated under one roof, was there a CLEAR understanding by BOTH of you that this was a separation? .... ie, you both decided to separate on that date?
2) What was the purpose of your spouses overseas travel?

I have added the reason for points below
1) We have had our different opinions which led to us living in different rooms. But we did not decided it but it eventually became like that we both living separate no talking or anything no common activity.
2) Partner is going back to her family ( overseas) to stay away from me. I assume currently where our relationship is if we are more distant then dont think that is going to help.

My partner is not decided neither they want to be with me nor leave me. I am stuck in between with nothing just to wait

 

[Dexter07]

To help ascertain what the situation is exactly & keep this as simple as possible .. Answer these two questions
1) When you separated under one roof, was there a CLEAR understanding by BOTH of you that this was a separation? .... ie, you both decided to separate on that date?
2) What was the purpose of your spouses overseas travel?

I have added the reason for points below
1) We have had our different opinions which led to us living in different rooms. But we did not decided it but it eventually became like that we both living separate no talking or anything no common activity.
2) Partner is going back to her family ( overseas) to stay away from me. I assume currently where our relationship is if we are more distant then dont think that is going to help.

My partner is not decided neither they want to be with me nor leave me. I am stuck in between with nothing just to wait

 

[Atticus]

My partner is not decided neither they want to be with me nor leave me. I am stuck in between with nothing just to wait

You basically have two options

1) If you both agree that the relationship is over, file a joint application for divorce & use the date of separation as when you moved into separate rooms...

2) If your spouse does not agree with that, you will have to file a sole application & provide enough information to satisfy the court (see link I provided) that you have been separated for the mandatory 12 months.

In either case, (because you were married less than 2 years) an additional affidavit explaining why you don't want to attend the mandatory mediation will also have to be provided with the application.

IMO, you should consider having that conversation I mentioned earlier... If you are sure the marriage is irretrievable, then let your spouse know, worse case scenario is the 12 months begins at that point.

 

[Dexter07]

You basically have two options

1) If you both agree that the relationship is over, file a joint application for divorce & use the date of separation as when you moved into separate rooms...

2) If your spouse does not agree with that, you will have to file a sole application & provide enough information to satisfy the court (see link I provided) that you have been separated for the mandatory 12 months.

In either case, (because you were married less than 2 years) an additional affidavit explaining why you don't want to attend the mandatory mediation will also have to be provided with the application.

IMO, you should consider having that conversation I mentioned earlier... If you are sure the marriage is irretrievable, then let your spouse know, worse case scenario is the 12 months begins at that point.

i am in point 2 situation and have tried to talk and explain her. My partner agrees but her family is not in agreement which pushed it back on me. Can sole affidavit help with showing separation under same roof ( current months )

Really appreciate your help Atticus

 

[Atticus]

Can sole affidavit help with showing separation under same roof ( current months )

As explained, an affidavit is necessary if your are claiming separation under one roof ....

Please read the link I provided for full explanation & what is required as proof...

What do I need to prove?
In your affidavit, you need to prove that there has been a change in the marriage, gradual or sudden, showing you and your spouse have separated. You will need to explain any:

• change in sleeping arrangements
• reduction in shared activities or family outings
• decline in performing household duties for each other
• division of finances; for example, separate bank accounts, and
• any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation.

Your affidavit should also explain:

• Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation.
• Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof.
• What government departments you have advised of your separation if you receive a government benefit; for example, Centrelink or the Department of Human Services (Child Support). If correspondence has been received from these departments about your separation, attach a copy to your affidavit.

SOURCE >>> Separated but living under one roof - Federal Circuit Court of Australia