Separating from your spouse or partner can be a difficult and emotional process. Once you’ve decided that you want your relationship to end, there is a lot to think about, including the care of your children if you have them, dividing your relationship property and updating your will.
The process you’ll need to follow to formally and legally separate from your ex-partner will depend on whether you are legally married or in a civil union, or in a de facto relationship. In the legal profession, a “divorce” is referred to as a “dissolution of marriage” and is only available if you were in fact married or in a civil union partnership. People in a de facto relationship cannot get “divorced” but can enter into a separation agreement to clearly agree the division of their relationship property and childcare arrangements.
For all couples, there are a number of steps in the process to become separated. For married couples/civil union partners, you must be separated for two years before you can apply for a dissolution of marriage.
Are we truly separating?
Deciding to separate or divorce is a big decision that has a serious impact on your life, and cannot be made lightly. Before making a final decision, it’s important to really consider whether there is any chance of resolving the issues in your relationship, including attending couples’ counselling or other alternative methods.
What about the children?
If you have children with your partner or spouse, you will need to make decisions about their day to day care and other guardianship issues when separating. Disputes often arise in this area and can result in lengthy discussions, involving lawyers and/or mediation. If you still can’t agree, the Family Court will have to decide your childcare arrangements.
How do we deal with our Relationship Property?
In New Zealand the Property (Relationships) Act 1976 (the Act) covers married couples, civil union couples and de facto whose relationship has lasted three years (with some exceptions).
The Act determines what is classed as relationship property or as separate property. Under the Act, relationship property is divided equally between both parties (unless an exception applies). Relationship property typically includes things such as your family home, household chattels, vehicles, income and KiwiSaver, as well as your relationship debts and liabilities.
Dividing relationship property can become very heated, and we strongly recommend discussing your rights and entitlements with a lawyer before discussing it with your ex-partner.
You will need to enter into a Separation & Relationship Property Agreement to finalise the division of your relationship property, or if you can’t agree, receive orders from the Family Court as to who gets what. Going to the Family Court can be an expensive and time-consuming process for both parties.
A Separation Agreement needs to drafted by either your lawyer or your ex-partner’s lawyer. It acknowledges that your relationship has ended by way of separation and deals with the division of your relationship property. In order for the Separation Agreement to be valid it must meet specific requirements under the Act, including each party receiving independent legal advice from separate lawyers at separate law firms.
Do I need to update my Will?
The short answer is yes. If you have separated from your spouse or partner but not yet obtained a dissolution of marriage/civil union, then your Will is still valid, meaning your ex-partner would still receive anything you had left to them, even though you are separated.
If you have obtained a dissolution of marriage/civil union since your most recent Will, then any reference to your ex-spouse is removed from your Will while all other clauses will remain the same.
Dissolution of Marriage
You must be separated for two years to obtain a dissolution of marriage in New Zealand. This timeframe can become an issue if you and your former spouse do not agree on your separation date or if there is uncertainty about the separation date.
The best way to be certain of your separation date is to enter into a Separation Agreement which records the agreed date of separation, or alternatively you can apply to the Family Court for a Separation Order.
Applying a separation order
To apply for a separation order, you will need complete the required paperwork and file it with the Family Court. You can download the required forms here or your lawyer can help you to complete and file the forms.
You’ll need to complete different forms depending upon whether you both agree to separate, or not. If your ex-partner does not agree to separate, once your application is filed your ex-spouse will be given 21 days to defend the application. If they do defend the application then you will both need to attend a Family Court hearing to allow the Judge to hear from both parties before making a decision about the order. If your ex-partner does not file a defence then a Judge will consider your application before deciding whether to make the order.
Proving you have been separated for two years
Either a separation order or a separation agreement will act as proof to the Family Court that you have been separated for two years. Alternatively, you can include proof such as a declaration that you have lived apart for two years or any other evidence that shows you have been separated for two years.
Applying for a Dissolution of Marriage
Your dissolution application will need to include evidence you have been separated for two years as noted above and either an original or certified copy of your marriage or civil union certificate. The cost of filing for a dissolution of marriage is $211.50 and this needs to be paid at the time of filing for application.
The type of dissolution application form you use will again depend on whether you and your ex-partner agree to get a dissolution. You can find the forms here and complete them yourself, or have your lawyer assist.
If you both agree, you can file a joint application together, and either choose to file a joint affidavit providing your evidence or choose to appear in the Family Court to give your evidence in person.
If your ex-partner does not agree to a dissolution of marriage you can still complete an application on your own. Once filed, the Court will provide you with service copies of your application, which you will need to arrange to have served on your ex-spouse. You cannot serve these documents yourself, so you will need to arrange for service through the Court, a professional process server or a mutual friend/family member. We strongly recommend that you get proof of service, which can be done by having the person who served the documents complete an affidavit of service to file with the Family Court.
Once the documents have been served, your ex-spouse will have 21 days to file a notice of defence if they intend on challenging your application. If they do file a notice, you both will be required to attend a hearing at the Family Court before a decision about whether to grant the order is made.
If your ex-spouse does not file a defence then the Family Court will then decide whether or not to grant the order and notify you of their decision. If an order is granted it will become final one month after it has been granted. The Court will provide you with a copy of the order.
WRMK Lawyers has a highly experienced, specialist relationship property team who can support you through relationship separation and divorce. If you are in this situation, please give us a call and we will be happy to assist.
Our thanks to Cheyenne Kumar for writing this article.