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28 Aug 2018

Do I Have To Move Out To File for Divorce?

By Family Lawyers Mackay, 28 Aug 2018
Divorce, Family Law

This is a prevalent question and a natural thought if you are considering or planning to divorce your spouse. In some circumstances, where the situation might be particularly volatile, both partners are keen to escape each other anyway, so one moving out isn’t even really an issue as they want time apart as soon as possible.

However, separation is not always that easy or “instant”. The pair of you might own the house you both live in. If there are children involved, neither parent will be keen to hurry up and move out and be away from their children and the familiarity of it all.

Ultimately, if you are getting divorced, you will eventually be going your separate ways, but to file for a divorce in the first place, do you have to be separated literally?

This article analyses the question, “Do I Have To Move Out To File for Divorce?

Are You Eligible to Apply?

Couples seeking divorce must adhere to specific eligibility criteria:

  • At least one parent must be born in Australia or have obtained Australian citizenship.
  • The applicant must be an Australian citizen by birth or through the Australian citizenship grant.
  • They must be lawfully residing in Australia to remain.
  • Residency in Australia for the preceding 12 months is mandatory.
  • The marriage must have irretrievably broken down with no chance of reconciliation.
  • A separation period of at least 12 months is required.
  • Both parties must have mutually decided to live separately for at least 12 months following the separation.


By consulting one of our accredited family law mackay specialists.

Sole Occupancy Order and The Family Law Act

Section 114 of the Family Law Act 1975 grants the Federal Circuit Court the authority to issue a sole occupancy order for a parent residing in the marital home. This order allows one party or parent to keep the family home exclusively, excluding the other party/parent. However, the issuance of such an order is contingent upon the existence of proof or a chance of family or domestic violence within the marital home.

A spouse cannot obtain a sole occupancy order in the lack of evidence or risk of family or domestic violence. Local authorities and family law courts refrain from granting such orders when safety concerns are absent. Additionally, suppose there is no involvement in criminal activity. In that case, the courts will not force a spouse to leave the marital home.

Residing “Under One Roof” in Separation

It’s feasible to get a divorce even if you continue living in the same house after the separation but keep separate lives.

When determining if the separation has happened ‘under the one roof,’ the court assesses various aspects:

  • Whether you still share a bed.
  • If you engage in sexual activity or have sex.
  • How do you potentially handle meals and domestic duties differently from when you were married?
  • If you are still integrating finances and sharing bank accounts,
  • How do your friends and family perceive your relationship status?

If these criteria apply to your situation and you seek a divorce, you must prepare supporting affidavits.

Do I Have To Move Out Of My House During A Separation?

People often assume the other person should vacate if the property is solely in your name. Still, it’s essential to reanalyse, especially if you have children.

For instance, a court would view this unfavourably if the other parent lacks the means to pay rent for alternative accommodation, leaving them unable to supply a roof over their child’s head. Family law prioritises the ‘best interests of the child’ in such circumstances.

Without safety concerns, the law confirms a child’s entitlement to keep a relationship with both parents. If it seems that your measures led to a situation where the other parent became homeless, or the child had to reside with you full-time due to lack of housing, this could negatively impact your character and yield an unfortunate result in any parenting debates handled by the Court.

Although it might feel like sacrificing the home you’ve worked hard for and enduring losses, it doesn’t necessarily have to be permanent. This situation might only be temporary until all decisions concerning parenting arrangements and finances are finalised.

This scenario spotlights the significance of seeking legal advice before making decisions. It underscores how certain decisions made without legal guidance can have adverse consequences later. Consulting with experienced family lawyers can clarify your options, ensuring you make informed decisions without risking your position or entitlements.

Alternatives usually allow you and your ex to live apart while protecting your children’s best interests. It would help if you also guaranteed you are ticking all the proper legal boxes. Seeking early guidance from a skilled family lawyer is the best first step.


By consulting one of our accredited family law mackay specialists.

Do I Have To Move Out To File for Divorce: Factors to Consider

Family Violence

Partners often separate and choose to live apart due to domestic violence, a familiar reason for such decisions. Sufferers may feel unsafe during separation, forcing them to seek help from local administrations and lawyers if they face the danger of family violence.

Parenting Plans and Issues

When couples with children separate, determining who should move out of the marital home can complicate matters. Typically, separated parents will negotiate parenting plans, addressing issues such as:

  • Where will the child reside temporarily?
  • When and where will custody exchanges occur?
  • How will parenting time be divided between each parent?
  • How will child support payments be arranged?

Suppose both parents agree on the parenting plan. In that case, they may submit it to the court, which will formalize it into a legally binding court order. However, suppose parents cannot reach an agreement. In that case, they must attend a court hearing where a judge determines the parenting arrangements.

Settlement of Properties

Property settlement enables separating or divorcing couples to divide their finances, assets, and marital homes. Both parties must ensure the division is proper and fair regarding each parent’s future needs. Conducting early property settlement may facilitate the decision on who moves out.

Both parties in a marriage possess rights to certain assets upon marriage. Further, couples may get more assets such as joint bank accounts, pensions, and even a matrimonial home as their marriage progresses. A former partner has no legal right to the marital home since they co-own it.

Maintenance of the Spouse

After divorce, the partner with greater earning capacity must fulfil the duty of providing spousal maintenance. Courts will not leave out parents who cannot offer financial support for themselves after a divorce. However, the lower-earning parent must substantiate their inability to support themselves due to factors like:

  • Mental and physical disabilities preventing them from attaining financial stability.
  • Lack of work experience hindering employment opportunities.
  • Being the primary caregiver for the child, I lack time for employment pursuits.

Why It’s Essential To Consult Family Lawyers Right Away

Couples can best decide who moves out by discussing matters with a family lawyer. They should address:

  • Their housing situation: whether renting or owning.
  • Existing mortgages on the home.
  • Arrangements if the ex-spouse remaining pays “rent.”
  • Responsibilities if one ex-spouse fails to contribute to bills or mortgages.
  • Considerations regarding spousal maintenance and its impact on property settlement.
  • Options if both decide to sell the house and divide proceeds.
  • The impact of moving out on commuting to work.
  • Assessing each spouse’s ability to cover home expenses.
  • Whether a spouse considering moving out can seek support from their family.


Living separately under one roof is extremely common these days, and this is officially recognised. It’s also very understandable, as both parties are breaking up, talking to the children, making arrangements for after the divorce, and so on. It’s also not always financially viable to physically separate immediately.

If you think divorce is imminent, or you and your spouse have discussed that divorce is the best course of action, then make an appointment with a family law expert to discuss your rights and options. It’ll put your mind at rest.

Family Lawyers Mackay can help you decide whether you have to move out. Our mediation services allow couples to reach an agreement without risking their financial position or parenting matters. 

Contact our team of family lawyers today. Call the compassionate and experienced team at Aylward Game Solicitors in Brisbane.


By consulting one of our accredited family law mackay specialists.


What is the minimum period of separation required for a couple to seek a divorce?

According to the Family Law Act 1975, a couple must be separated for 12 months before seeking a divorce.

Does the separation mean the couple must physically live at different addresses for a year?

No, living separately under one roof is also recognized by the law as a valid form of separation for divorce.

Is it financially viable to physically separate immediately?

It’s not always financially viable to physically separate immediately, and living separately under one roof is common today.

What should I do if I am thinking about divorce or have discussed it with my spouse?

Suppose you are thinking about divorce or have discussed it with your spouse. In that case, you should make an appointment with a family law expert to discuss your options and rights.

Can you recommend a family law firm in the Mackay area?

Yes, the compassionate and experienced team at Family Lawyers Mackay is a great option for those seeking a family law firm in the Mackay area.

Get in touch today!

We take pride in customer service and look forward to handling your matter.