Key points
This case in 30 seconds
- Situation
- The client and their spouse could not yet afford a second home, so they kept living in the same flat.
- Approach
- The agreement sets out separate bedrooms, each person’s daily expenses and the date the separation counts from.
- Result
- After one year, if the spouse agrees, the client can file for divorce on the ground of separation.
Three points for handling this well
- Even under one roof, you can set out separate bedrooms, separate meals and separate finances.
- The agreement states the date the separation counts from, as proof for later.
- After one year, if the spouse agrees, the client can file for divorce on the ground of separation.
Background
The client and their spouse agreed to separate, but could not yet afford the cost of a second home after one moved out.
For the time being, they kept living in the same flat.
- Not sure whether living in the same home still counts as separation
- Worried that the spouse may later deny the separation dates
- Not sure how to divide living expenses clearly
They had searched online, but different websites said different things, and they were not sure whether living in the same home could count as separation.
They wanted to set out their separate living arrangements clearly even though neither could move out.
When you cannot afford a second home, the first step is to set out your separate living arrangements clearly.
Why separate under one roof, with separate rooms, separate expenses and a separation date in writing?
In this case the couple chose to separate under one roof because they could not yet afford the cost of one moving out.
If the separate living arrangements are put in the agreement early, you can still rely on separation to apply for divorce later.
Under one roof, what counts as separation?
Separate bedrooms, separate meals and separate finances, with the spouse aware that you are separating: even in the same home, the court may accept this as separation.
What is the difference between staying in the same home and moving out?
| Moved out | Same home | |
|---|---|---|
| Record of living apart | Separation agreement, new tenancy agreement and so on | Records of separate rooms, separate expenses and so on |
| Separation date | The date of moving out | The date you began living separately, written into the agreement |
| Things to note | If the spouse disputes the date, you must prove it | Separate rooms alone, while still living as a couple, may not be accepted |
| Ground for divorce | Depends on whether the spouse agrees | Depends on whether the spouse agrees |
The agreement must state the date you began living apart. If you still share a home, it must state how you divide the rooms and live separately.
While you share a home, the agreement can set out each person’s daily expenses and records of living apart, such as messages and dates.
For the separation agreement and proof of separation involved in this case, see “Separation agreement”.
Similar situations may also relate to “cases where the other spouse does not agree to a divorce” or “cases where both spouses agree to divorce (joint application)”, which are also worth reading.
After separation, how can you apply for divorce?
If the other spouse agrees, you can divorce after one year of separation. If they do not agree, you can divorce after two years of separation.
The separation date must be stated in the divorce application. If the other spouse disputes the date, the applicant must prove it.
Once the living arrangements are settled, what remains is knowing how each stage works in practice.
How we helped
From the first consultation to signing the agreement, the same dedicated consultant follows your case. We help in three stages.
-
Discussing and sorting out
From the first consultation
At the first consultation, the dedicated consultant first learns why the client and their spouse cannot move out, and how they live together at home.
We help the client organise the temporary arrangements for sharing one home, including separate rooms, separate expenses and daily living details.
Setting out the separate living arrangements early is the key first step.
-
Drafting and signing
Once everything is in order
We help draft the separation agreement, setting out separate rooms, each person’s daily expenses and the date the separation counts from.
The two sides go through it clause by clause, changing it until they are satisfied, and then sign.
When the separation date is clearly written, there are fewer disputes later.
-
Follow-up during separation
After signing
After signing, we remind the client to keep records of living apart, such as each person’s expenses and messages.
Later, if the spouse agrees, the client can apply for divorce based on the separation date recorded in the agreement.
With the separation date and arrangements clearly written, you have something to rely on later if needed.
Throughout, the client could phone the dedicated consultant at any time, in Cantonese, Mandarin or English.
We explained every court letter first, and what needed following up.
We are a divorce consultancy. We help you organise information, prepare documents and understand the procedure. If your case needs legal advice or a representative in court, we will tell you honestly and help you make other arrangements.
With the three stages joined up, this was the outcome.
Outcome
After one year, if the other spouse agrees, the client can file for divorce on the ground of separation.
The agreement already sets out separate rooms, separate expenses and the separation date, as a basis for later.
For the client, the biggest difference is this: even if the spouse later disputes the separation date, the agreement already states a clear date.
Throughout, the dedicated consultant helps organise the content of the agreement and reminds the client to keep records of daily life.
Without clearly setting out the separate living arrangements early, proving the separation date later often takes longer.
They now live by the arrangements in the agreement, with their expenses and daily details clearly separated. This was what mattered most to them at the start.
How does the procedure change if your situation is different?
The approach in this case was chosen because the client and their spouse could not yet afford a second home. If the situation is different, the approach will change too.
Already moved out, found another home: if one of you has since moved out, you can instead issue a certificate of separation and keep the new tenancy agreement. This is similar to the case above where the other spouse does not agree to a divorce.
Both agree, one year apart: if the other spouse agrees, you can also consider the approach in the case above where both spouses agree to divorce (joint application).
Spouse may later disagree with divorce: if the other spouse later disagrees with the divorce, the required period of separation is longer. See the case above for the approach.
Three things you can do first in a similar situation
- Even under one roof, you can set out separate bedrooms, separate meals and separate finances.
- The agreement states the date the separation counts from, as proof for later.
- If the other spouse agrees, you can later file for divorce on the ground of separation.
FAQ
Can living in the same home count as separation?
Yes.
Separate bedrooms, separate meals and separate finances, with the spouse aware that you are separating: the court may accept this as separation.
What records should you keep while sharing a home?
While you share a home, the agreement can set out each person’s daily expenses and records of living apart, such as messages and dates.
How long must you be separated before you can divorce?
If the other spouse agrees, you can divorce after one year of separation. If they do not agree, you can divorce after two years of separation.
After one year, how can you apply for divorce?
After one year, if the spouse agrees, the client can file for divorce on the ground of separation.
Do you always need proof of separation for a divorce?
Not always.
You do not need to submit proof of separation to the court unless the other spouse disputes the separation date.
What arrangements should the agreement set out?
The agreement must state the date you began living apart. If you still share a home, it must state how you divide the rooms and live separately.
Do you give legal advice or represent clients in court?
We are divorce consultants. We help you gather information, prepare documents and understand the procedure.
If your case needs legal advice or court representation, we will tell you honestly and help you make other arrangements.
Illustrative case: this page is adapted from similar cases we have handled. The people and details have been changed, and it is not a record of an identifiable client.
Every case is different, and the time taken and the result will vary. This page is general information only. It is not legal advice and is not a promise about your case.
