Yes, if you are living in the same house as your spouse yet there is no prospect of reconciliation and you satisfy the following factors then you will still be considered to be separated for the purposes of the Act.
- There must be a physical separation. Living in the same house does not negate physical separation especially if the spouse is remaining there due to economic necessity.
- There must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship.
- The absence of sexual relations is not conclusive but is a factor to be considered.
- The discussion of family problems and communication between the spouses
- Presence or absence of joint social activities.
- The meal pattern.
- Although the performance of household tasks is also a factor, weight should be given to those matters which are peculiar to the husband and wife relationship.
- The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent. An additional consideration in determining the true intent of a spouse as opposed to that spouse’s stated intentions is whether the spouse has filed income tax returns as “separated” or “married”.