126.96.36.199 Determining separation under one roof
This topic discusses the assessment of people who are separated and living apart on a permanent or indefinite basis and who continue to live under the one roof. SSAct subsection 4(3A) states that people who are living separately and apart should not be treated as being in a member of a couple relationship (188.8.131.52).
Definition of a member of a couple
A person is a member of a couple under the SSAct if they are living with another person as their partner, where both people are over the age of consent (applicable to the relevant state or territory), are living together on a permanent or indefinite basis, are not in a prohibited relationship, and are either:
- legally married, or
- in a registered relationship (184.108.40.206), or
- in a de facto relationship (220.127.116.11).
Act reference: SSAct section 4(12) to 4(13) Prohibited relationship
Assessment of 'separated under one roof' cases
Consideration will be given to all relevant information regarding the person's separation including details provided by the person or obtained from independent sources.
SSAct subsection 4(3) sets out the range of information that must be considered when determining whether a person is in a member of a couple relationship or separated under one roof. This provision is covered in more detail below under 'Five factors - indicators of a member of a couple relationship'. However, in brief the following 5 factors are considered:
- financial aspects of the relationship,
- nature of the household,
- social aspects of the relationship,
- presence of a sexual relationship, and
- nature of the commitment.
In deciding these cases, both parties may be interviewed and asked to provide additional information about their living arrangements. Consideration is then given to the range of information available to determine whether a separation has occurred.
A person is considered to be separated where there is evidence that the marriage, registered relationship or de facto relationship has completely broken down and the parties are living separately and apart on a permanent or indefinite basis. The separation means more than a physical separation within the household as it involves the destruction of the marital/registered/de facto relationship (the consortium vitae), and ONE OR BOTH PARTIES FORM THE INTENTION TO SEVER OR NOT TO RESUME THAT RELATIONSHIP AND ACT ON THAT INTENTION.
Where a married, registered or de facto couple continue to share a household after separation, an assessment must be made to clarify the living arrangements of the parties. Each party will need to explain why they have continued to share a residence and to provide evidence of the breakdown (gradual or sudden) that supports a conclusion that genuine separation has occurred and there are no plans to resume the relationship. Consideration will be given to the parties subjective statements, however further evidence may be required to support a conclusion that separation has occurred.
Evidence gathering should be conducted in a manner sensitive to the circumstances and cultural background of the parties, for example:
- diverse cultural and linguistic backgrounds,
- the potential for, and fear of disclosure of sexual preference and or same-sex relationship especially for older people in same-sex relationships,
- young people who have been assessed to be independent on 'unreasonable to live at home' grounds.
When deciding to interview a partner for additional information discretion must be exercised to ensure that the contact is appropriate. For instance, there may be circumstances where it is not appropriate to interview a partner at all. Where there are indications that family and domestic violence may be present, the partner/other party should not be contacted. Alternatively, there may be circumstances where additional care and discretion is critical, such as where a claimant/recipient fears disclosure of sexual preference and/or same-sex relationship as a result of the interview.
The claimant/recipient and the other party need to provide objective evidence that they are separated and that there is no reasonable likelihood of them resuming the relationship. In assessing relationship status, greater weight will be given to objective indicators of separation such as statements from independent third parties. Evidence of family and friends will be considered, but will be accorded less weight. Weighting the information in this way helps to establish whether a separation is genuine or contrived, and whether it is 'permanent and indefinite' or temporary.
Objective indications of separation should be sought, particularly evidence from independent persons who have dealt with the family's circumstances in a professional capacity, such as a minister of religion, counsellor, social worker or solicitor. A solicitor may, for example, confirm action has been taken for divorce and/or a property settlement. The claimant/recipient will not generally be required to initiate a new contact with such a professional for the sole purpose of the separated under one roof assessment. As a general rule, third party statements should be based on independent observations of the relationship rather than a restatement of what the person has been told by the parties. Third parties contacted for information could include financial institutions, superannuation funds, club/committee membership groups, health care institutions.
Where independent referees are not available to verify the separation, a departmental social worker's report may be required to assist with the decision-making. The social worker provides a recommendation only and it is the delegated decision maker who is responsible for the final decision. This approach may be taken where the separation is not public knowledge, for example, due to cultural reasons, the threat of family and domestic violence or fears regarding disclosure of sexual preference and or a same-sex relationship.
The presence of family and domestic violence may indicate that a person, whether or not they reside under the same roof as the other party, is not a member of a couple.
In situations where one party is residing in a separate fully self-contained dwelling such as a flat attached to the home or in a second home on the property, it is more likely to be considered that the person is living separately and apart.
Time limits & rights to review
A decision made regarding separation under one roof is not time limited but may be reviewed.
Five factors - indicators of a member of a couple relationship
SSAct subsection 4(3) sets out 5 factors that must be considered when determining whether a person is in a member of a couple relationship or separated under one roof. These are discussed below with specific reference to whether the person is considered to be living separately and apart from the other party on a permanent or indefinite basis under the one roof. A more detailed description of each of the 5 factors is provided in 18.104.22.168 Determining a de facto relationship (whether of the same sex or a different sex).
Financial aspects of the relationship
A degree of financial interdependence may be indicative of one person providing financial support for the other.
Important indicators to consider are:
- Whether the parties jointly own their home.
- Note: Joint ownership of a property may be a valid reason why a couple remains separated under the one roof when financial and legal implications are taken into account. Where the parties jointly own more than one property, the decision maker must ascertain why one party has not moved into another property.
- Evidence of splitting or sharing of bills (including rent and mortgage payments).
- Other actions taken to separate financial arrangements.
Example: Closure of joint accounts and renegotiation of loans for cars and/or furniture so that they are in one name only.
- Whether either party has claimed the other as a partner on their tax return to the ATO and/or other government departments or organisations.
- Whether either party is the beneficiary of the other's will, superannuation, life insurance policy or other benefit, legal device or arrangement.
Example: Under a private trust.
- Whether there is a potential or actual child support liability between the parties and how this issue has been addressed.
Example: Consideration may be given to whether one or both parties have applied for a child support assessment and any mechanisms by which child support is recorded, collected and/or paid.
- Whether a property settlement has taken place or legal advice has been sought regarding a property settlement.
Where a couple have recently separated, consideration should be given to all evidence with this in mind. For example, the parties may not have had the opportunity to change certain arrangements such as wills or superannuation details. Similarly, previous tax returns might correctly list their ex-spouse as a partner, but give no indication of the current relationship status.
The presence of economic abuse may indicate that a relationship has broken down and that a person is living separately and apart on a permanent or indefinite basis.
Nature of the household
This factor examines the efforts the parties have made to physically separate themselves within the household and to live independently of the other.
Important indicators to consider are:
- Whether the parties share living spaces such as bedrooms, bathrooms and other living areas.
- Where the property is rented, whether one party is now regarded as a boarder/sharer.
- Whether the parties do their own shopping, cooking, cleaning, household maintenance and gardening or have a roster/agreement similar to a share household.
Joint responsibility for children
SSAct subparagraph 4(3)(b)(i) requires consideration of any joint responsibility for providing care or support of children. The changing nature of separated Australian families has resulted in an increased emphasis on shared parental responsibility. In 'separated under one roof'' cases, the care and support provided by parents may not be an accurate indicator that a member of a couple relationship exists.
Social aspects of the relationship
The social aspects of the relationship take into account how the parties demonstrate that they are no longer a couple and live separate lives.
Important indicators to consider are:
- Whether family and close friends of the parties are aware of the relationship breakdown.
- Whether the parties separately visit their adult and/or independently living children.
- Whether the parties go out socially together.
- Whether the parties are still invited out as a couple, and if so, whether they let others know that they are separated.
- Whether the parties go out separately with their own friends.
- Whether the parties go on holidays separately, spend Christmas with their own immediate extended family, etc.
- Whether the parties have continued to represent themselves as a couple (for example, to real estate agents, credit agencies and government agencies) after the purported separation.
- Whether the parties have established relationships (including a sexual relationship) with another person.
- Where the couple have children, whether the children's school or other carers have been notified of the separation.
- Whether any recent police reports and court orders that restrain or otherwise confine contact between the parties.
- Whether there are cultural and religious considerations which may result in separation being disguised.
Example: Where there is evidence of ongoing social aspects that are indicative of a member of a couple relationship, it is necessary to consider whether these aspects can be explained by other factors. An example is found in the case of Re Francis and SDSS (1991) in which a couple from a diverse cultural and linguistic background were deemed to be living separated and apart despite evidence that they were perceived by people in their community as a couple. The reason given by the Tribunal to treat the couple as separated was that, in their particular circumstances, separation was considered extremely shameful and the couple maintained the appearance of being married to avoid this public shame.
Presence or absence of a sexual relationship
The presence of a sexual relationship would generally support a conclusion that the parties remain in a member of a couple relationship. The absence of a sexual relationship is not a conclusive indicator that the relationship has completely broken down.
Nature of the commitment
This factor examines the level of commitment the parties have to each other and the degree they have made to distance themselves physically and emotionally from the other party.
The presence of family and domestic violence may indicate the absence of commitment and that the person is no longer a member of a couple.
Important indicators to consider are:
- Whether there has been a withdrawal of intimacy, companionship and support to the other party.
- Whether the parties have any jointly held plans for the future.
- Whether the parties share information and communicate with each other.
- Whether either party would help the other if there was a personal or family crisis.
- Whether either party would visit the other if they were hospitalised.
- Whether either party would provide assistance if the other party were ill, particularly in the event of a long-term illness such as dementia, stroke, etc where ongoing daily care would need to be provided.
- Whether either party intends, or has taken action, to divorce the other party.
- The fact the parties have not taken action to obtain a divorce does not necessarily mean that there is a continued commitment to the relationship.
Note: The following examples would not necessarily indicate a commitment to the relationship, provided there were no other indicators:
Example 1: If one party calls a doctor or ambulance for the other person in an emergency, or perhaps provide short term care if the person would recover in a day or 2, if no one else was available.
Example 2: If the relationship is characterised mainly as being a 'carer relationship' with one party caring for the other person who is frail aged, disabled or ill, who cannot care for themselves, and there is evidence that the parties had been living separately.
Act reference: SSAct section 4(2) Member of a couple-general, section 4(3) Member of a couple-criteria for forming opinion about relationship, section 4(3A) The Secretary must not form the opinion that…