Relationship / Family
The end of a relationship is acknowledged by many as being one of life’s major stresses. Whether it comes as an unexpected shock, or is a planned or agreed outcome, a separation marks a change in circumstances, often involving personal upheaval. In many cases, uncertainty around arrangements for housing, children and finances only complicates an already challenging time.
Do I need a formal order to separate from my partner/spouse?
No. Many people separate through a mutual discussion or a conversation where one partner or spouse tells the other that the relationship is at an end. Sometimes one partner or spouse may choose to move out of the family home. Or they may both decide to remain living together, while various conversations are happening or practical arrangements are made. It may not be possible to pinpoint an exact date when the relationship ended, but it often helps to note down a date or timeframe when both parties agreed to separate, including when living arrangements changed or when a definitive conversation occurred. A formal separation order can be obtained through the Family Court, but is rarely required.
I am not sure about what to do and the way forward from here
The Family Court has a free counselling service. Referrals are available from your lawyer or your local Family Court. Your doctor will also have available referrals to appropriate services. By consulting a lawyer you can obtain tailored legal advice about your specific situation, which may lessen uncertainty and allow you to work out a possible plan going forward.
What about our children?
Where children live is a guardianship decision, and the children’s day-to-day care arrangements can be decided by mutual agreement between the parties, or by a Court order. Disagreement about children living with one parent or the other, the form of those arrangements, and one parent feeling disadvantaged, are inevitably a cause of stress and grief. Temporary arrangements can be put in place until circumstances are more certain. If there is any disagreement on these matters, we recommend consulting a lawyer as soon as possible, to minimise the possibility of misunderstandings and hasty decisions.
Your lawyer or local Family Court can also refer you to a free Parenting Through Separation course, which is often beneficial. You and your partner must attend separate courses. Your lawyer or the Inland Revenue Department can advise you about applying for or paying child support in your situation.
What about our home, and finances?
In New Zealand there is a presumption that after a relationship of three or more years, the home you lived in together is to be shared equally, along with other relationship property, such as joint bank accounts, the relationship portion of KiwiSaver, vehicles and household furniture. This presumption is subject to several exceptions. If you have a written “Contracting Out agreement”, your legal entitlement will likely be influenced by that agreement. Children’s beds and possessions usually move with the children, and are often informally seen as belonging to “the kids” rather than forming part of a division of property between adults. It can help to make a written list of the furniture and other assets in the home, so that the way it is divided can be assessed and recorded.
If you have joint bank accounts, credit cards, or financial arrangements, these can often be accessed by either of you after separation. While adjustments can be made in any later property division, it helps to be aware of the fact that in the short term, unexpected withdrawals or expenses by your spouse or partner can cause difficulty. We recommend that you seek legal advice about your property situation as soon as possible during or after a separation. Brookfields can assess whether a notice of claim (a type of caveat) needs to be in place to protect your interest in the family home and provide tailored advice for your specific situation.
What happens to the family trust?
If a family trust is involved, we recommend you seek legal advice as soon as possible, as the solution will often be found in the specific terms of the trust deed. If the home you are living in is owned by a trust, then that can also affect the way in which property is divided, depending on whether one or both spouses or partners are connected with the trust.
What about the paperwork?
Childcare arrangements can be recorded in writing. Speak to a lawyer about the level of formality that is required in your particular situation. While many parents operate on an informal agreement, other situations require a Court order, either made by consent or with the involvement of a Family Court Judge.
Many couples record their property division in a written “Separation Agreement” which is certified and witnessed by lawyers. Each partner or spouse must receive independent legal advice for the agreement to be binding. If agreement can be reached between the couple and their independent lawyers, then there is no need to “go to Court” about property. If agreement cannot be reached, then an application to the Family Court may be necessary to resolve matters.
Once you have been separated for two years, and you wish to formally end your marriage, you can apply for a dissolution (the formal name for a divorce). In New Zealand dissolutions can be applied for individually, or jointly. The difference is a procedural one and relates to the cost and the way in which the documents are served (formally given) to the other spouse. You do not need to prove or show any reason why the marriage broke down or why you want a dissolution, aside from confirming you have lived apart for two years. If you were married outside New Zealand, but have lived here during the marriage, you can still apply for a dissolution here. However, we recommend you seek legal advice about whether you need to apply for a dissolution in the country you were married in.
Brookfields are available to assist you with your legal queries at this difficult time. Please contact us for further advice.
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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.