Separation, Divorce and De Facto Relationships
What is separation?
Separation occurs when a married (or civil union) couple commence living separately and apart. Sometimes a married or civil union couple can be deemed to be separated even though cohabitation was brought to an end by the actions or conduct of only one of the spouses. In certain circumstances, a married or civil union couple can be considered to be separated despite still living in the same residence.
You don’t have to do anything official when you separate from your partner, but a separation agreement or separation order can help to keep things clear.
When your relationship breaks down, you have the option of working together with your former partner. This is called a separation agreement. If you are not able to agree to separate or are unable to agree when you separated from your former partner, you can ask the Family Court for a Separation Order.
A separation agreement is the best option for most people who have children or property together. You can make the agreement yourselves, in writing or verbally (it has to be written if it includes information about property you share). It should include the date you agreed to separate.
If you’ve been married, had a civil union, or lived together for more than 3 years, any relationship property you and your partner own will be shared equally between you. Relationship property generally covers things that have financial value (such as insurance payouts, superannuation) and debts.
If your separation agreement also deals with property:
- you both have to get independent legal advice
- it must be in writing and signed by both of you
- your signatures must be witnessed by a lawyer
- the lawyer who witnesses your signature must certify that they’ve explained to you the implications of the agreement.
You can choose to register the agreement in the Family Court as a ‘consent order’. This makes it legally enforceable, like a court order.
If you cannot agree on your children’s care, you can ask the Family Court for help to work out care arrangements.
You only need a separation order if one of you does not want to separate, though you can choose to apply for one together if you both agree. If you want to separate and your partner does not, you need to file an application with the Family Court. Your partner can then choose whether or not to defend the application. If they do, you will both have to attend a hearing in front of a judge at the Family Court.
Separation orders when you do not agree
If your partner has applied for a separation order and you do not want to separate, you can choose to defend the application. You usually need to do this within 21 days if you’re in New Zealand, 30 days if you’re in Australia, or 50 days if you live somewhere else.
Once you are separated there are several matters that will need to be dealt with. These include, but are not limited to, planning for your children, if relevant, advising various government agencies (WINZ, Oranga Tamariki etc.) and sorting out your financial affairs.
If you have recently separated, we recommend making an appointment with us as soon as possible so we can help you sort through the legal and practical aspects and ensure that your legal rights are protected. We will also diarise significant dates as these will be important considerations in your family law matter.
Applying for a divorce in New Zealand
The Family Court can end your marriage or civil union by making a Dissolution Order. You can ask the Family Court to legally end your marriage or civil union if: you have been living apart for 2 years or more and at least 1 of you is domiciled in New Zealand. In general, ‘domiciled’ means that New Zealand is your permanent home, even if you are or have been living overseas for a time.
If you have children together, the court must be satisfied that arrangements have been made for their day-to-day care and other aspects of their welfare. You can ask the Family Court for a divorce together, or just 1 of you can ask: when you both agree to get a divorce or when only 1 of you applies.
You must complete an application pack which needs to include an original or certified copy of your marriage or civil union certificate (this is not the document you signed on the day of your marriage or civil union). You can get the certificate from the office of Births, Deaths and Marriages, a copy of your separation agreement or Separation Order, if you have one, to prove you’ve been living apart for at least 2 years. You then need to file your application. This means your documents need to be delivered personally or posted to your local Family Court by you or your lawyer. The fee for applying for a divorce is $211.50 (including GST).
New Zealand law defines a de facto relationship as being between two persons (whatever their gender), who are both aged over 18 years old, who are not married to or in a civil union with each other and who live together as a couple. A de facto relationship is typically defined as “a couple living together for three or more years”.
A de facto relationship is considered to be at an end when the parties are no longer living together on a genuine basis. There are a number of factors that determine this, not just whether you are still living in the same household.
If you are in a de facto relationship, or if your relationship is heading in that direction, we strongly encourage you to enter into a Contracting Out Agreement (pre-nuptial agreement).
It is important to be aware that there are time limits that apply to resolving division of property once a dissolution of your marriage or civil union has been granted, or your de facto relationship has ended.
For parties who are married or in a civil union, you have 12 months from the date on which your dissolution order takes effect as a final order to commence proceedings for division of your property. For parties to a de facto relationship, you have three years from the date your de facto relationship ended to commence proceedings for division of your property.
If you think the other party is likely to delay resolving division of property with you, you should speak to a lawyer as soon as possible after you separate or decide to separate.
Family law matters involve a range of intricate and complex issues. We help clients deal with these issues with a focus on resolving their family law problems in a timely, cost-effective and dignified manner.
We provide the full spectrum of family law services, including:
- Alternative Dispute Resolution including mediation and collaborative law
- Property settlements for married, de facto and same-sex couples
- Contracting out agreements for married, de facto and same sex couples
- Spousal maintenance
- Child support including voluntary and private child support agreements
- Parenting matters – care arrangements, guardianship, relocation, overseas travel
- Consent orders for property or parenting issues
- Protection from Domestic Violence
- Child protection and child abduction including Hague Convention proceedings
- Surrogacy agreements, adoption and paternity issues
- Court representation for a range of family law issues including urgent matters.
We practise predominantly in family law and have expertise across all areas of family law issues, with experience in both New Zealand and Australian jurisdictions. We understand the impact and emotional upheaval that separation has on individuals, children and extended families. We are insightful, sympathetic, and transparent, offering sound advice and workable solutions for all family law matters.
If you need any assistance, contact one of our lawyers at [email protected] or call 09 363 2767 for a no-obligation discussion and for expert legal advice.