Affidavit separation under one roof

Sometimes, couples can be separated but continue to live separately under the same roof.

There may be times, such as filing for divorce, when you will need to provide evidence that this has been the case. The main way to pressent evidence to the court is to file an affidavit.

What should you include in an affidavit?

Generally, an affidavit should not set out the opinion of the person making the affidavit; that is, it must be based on facts not your beliefs or views.

Where possible you should avoid referring to facts that are based on information received from others (known as hearsay evidence).

You should not include in your affidavit, what you think your spouse was feeling or thinking unless you have evidence of them telling you what they thought or felt at the time, such as a letter or email.

Unless a court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.

Any affidavit you file must be served on all parties. Read more about serving documents: Serving divorce papers: A quick how to guide

Formatting an affidavit

The affidavit must be divided into paragraphs. Each paragraph must deal with only one aspect of the subject matter. It is suggested that each paragraph contain no more than about 6 lines.

Each paragraph must be numbered.
Each paragraph should be confined to a distinct part of the factual subject matter.
The affidavit must be typed. Handwritten affidavits will be accepted only in circumstances of urgency, usually involving some immediate threat of harm to a child.
The text should be printed on only one side of white A4 paper.
Documents in support of your affidavit should be referenced as Annexure in the format required by the appropriate court (see below).
The address for service of the documents (the address the court can contact the deponent) must be included in the footer of page 1.

SAMPLE AFFIDAVIT (living separate under same roof)

FILED IN: (Mark with X the court that applies)

FAMILY COURT OF AUSTRALIA

FAMILY COURT OF WESTERN AUSTRALIA

FEDERAL MAGISTATE’S COURT OF AUSTRALIA

OTHER: _______________________________

REGISTRY: Enter court location

FILE NUMBER: If known

Parties to the matter:

Your Name (applicant/respondent)

Other party's (OP) name (applicant/respondent)

AFFIDAVIT

Filed on behalf of:

Name of deponent: Name of person making the affidavit

Date sworn/affirmed: ____/____/______ . (Swearing has religious connotation/Affirming does not)

I, Your Name of your address and your occupation make oath and say, as follows:

Write a separate paragraph for each point, if they apply to you:

I am the applicant/respondent in the within matter and was born on Xday Xmonth, 19XX. I am XX years of age.
The applicant/respondent (OP) is other party’s name, born on Xday Xmonth, 19XX and is XX years of age.
OP and I met in Month of Year …. Explain briefly how you met.
We started dating regularly around Month of Year.
We started living together at address in Month of Year and . for example, have been living together as husband and wife at various addresses since then. We currently reside at . address.
Before we separated … explain what things were like … for example - we used to do many things together such as preparing meals, share household chores, sleep in the same bed and had a sexual relationship and we holidayed and socialised together.
While we were together in our relationship …. explain your financial arrangements … for example – we shared our finances by way of joint bank accounts and both making contributions to our activities, household expenses, buying groceries and general living expenses.
Before separating, explain your behaviour before separation - for example - we spent time and socialised with each other’s friends and relatives and they considered and referred to us as a couple.
We separated and began living separately under the same roof on or about Xday Xmonth, 19XX. I considered we had separated when …. explain why you say you separated on that date -for example, I said to OP words to the effect of "This relationship is over. From now on I will be living in the spare room until I can afford to move to another place."
I recall that OP acknowledged that we were separated when they …. Explain when and what they did or said that indicated to you that they acknowledged your separation in point 6.
We continued to live in the same home following separation because …. explain why you remained in the same home.
Our sexual relationship ended around Xmonth, 19XX.
We moved to separate beds on or about …. Xday Xmonth, 19XX. I slept … and OP slept . .
After separation, we managed our finances such that . explan what happened with your finances? Did you separate your bank accounts, open a new private bank account, divert you salary from the joint account, start buying things like food separately?
Did you stop attending social outings together? If you kept going to some outings together, explain when and why you attended outings together.
What government agencies (e.g. Centrelink) were informed of your separation?
What conversations did you have about the fact that you were separated? For example, did you talk about how you would divide your property or what you were going to do about the children?
Any other changes to your daily life? Did you each start doing your own washing? Did you communicate by leaving notes for each other, rather than talking? Did you holiday separately? Did you start dating other people.
Outline what plans do you have to live separately if you are still living under the same roof?
What living arrangements were made for any child of the marriage under 18 years during the time you were living under one roof?
Detail anything else that shows that the relationship had changed.

End of Affidavit

Attaching documents

Federal Circuit Court

If you refer to a document in your affidavit, you must attach a copy of it to the back of your affidavit (known as an annexure). Examples of an annexure are a contract of sale or a child’s school report. If there is more than one annexure, you need to refer to each one by a number or letter; for example, Annexure 1 or Annexure A. You also need to number the annexures consecutively, that is, from the first page of the first annexure to the last page of the last annexure. Each annexure must have a statement signed by the authorised person identifying the annexure as the document referred to in the affidavit.

The wording of the statement is:

This is the document referred to as Annexure [insert reference number] in the affidavit of [insert deponent’s name], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].

The statement must be signed at the same time as the affidavit and by the same authorised person.

Family Court

A document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to (or annexed to) the affidavit, or filed as an exhibit to the affidavit. There may be exceptions where court orders or the Rules provide otherwise (for example Family Law Rule 15.62 in relation to expert reports). The document/s referred to in the affidavit must be served with the affidavit on the other party/ies after filing and referenced in the disclosure list. The document/s must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required. See Family Law Rule 15.08. Source: Family Court of Australia.

Signing an affidavit

The person making an affidavit (the deponent) must sign the bottom of each page in the presence of an authorised person, such as a lawyer (as long as they have not participated in preparing the affidavit or in the proceedings in which the affidavit is intended to be used), or Justice of the Peace.

If you are overseas a Notary Public or Australian Diplomatic/Consulate Officer can witness the signature.

On the last page of the affidavit the following details must be set out (known as a jurat):

the full name of the person making the affidavit, and their signature
whether the affidavit is sworn or affirmed
the day and place the person signs the affidavit, and
the full name and occupation of the authorised person, and their signature.

If any alterations (such as corrections, cross-outs or additions) are made to the affidavit, the person making the affidavit and the witness must initial each alteration.