Frequently Asked Questions on Separation

1. What is the legal process for getting a divorce?

To formally end your marriage, you have to get an order of the Court dissolving it – a dissolution. The only ground for a dissolution in New Zealand is that you have been separated (living apart) for two years. If you both agree to get a dissolution, you can make a joint application. If you cannot agree, either one of you can make an application. The application needs to be made to your local Family Court.

The process is generally easy to follow and you generally don’t need legal assistance as all the information is publically available on the Family Court website – see http://www.justice.govt.nz/family/separation-divorce/apply-for-a-divorce/.

2. What about our property?

There is a presumption of equal sharing for all property acquired during the course of the marriage. There are lots of exceptions to this presumption, however the Courts generally strive to give effect to this unless there are exceptional circumstances justifying otherwise. You and your partner may agree on a division of property. In order for that agreement to be final and binding it is best to have that recorded in writing and signed off by you after receiving independent legal advice about the effects and implications of the agreement. If you cannot agree on division of your property then you can make an application to your local Family Court for orders. You generally do need a lawyer for this as the process can be complicated.

3. How do I protect my children’s financial rights when we split up?

Parties generally agree about the financial provisions that need to be made for their children. If one party is a recipient of a state benefit then the other party will automatically have their income assessed for child support.

4. How can I stop my partner taking all the money from our joint accounts?

If you are concerned about property disappearing you should immediately talk to your lawyer who can advise you what steps can be taken. If the property is money held in a bank account also talk immediately to your bank. If the accounts are joint there is nothing stopping you from withdrawing half/the whole sum and placing the funds elsewhere for safekeeping.

5. My Spouse and I are separating and he’s moving out. Is he allowed to take property from our house to his new house?

Not without your consent in writing or unless the removal relates to an emergency. The Family Court can grant orders that give the other party furniture to equip another household. It is best if at all possible to reach agreement on this property.

6. My partner of 10 years wants to leave. We have lived all this time in a house he owned before we started living together. Since I moved in, I have been paying half of the mortgage and bills and we’ve redecorated together and bought furniture and appliances. What is my legal position?

If you reside in the family home then it is relationship property. If you are in a qualifying relationship (living together in the nature of marriage for three years or more) there is a presumption that you will have a 50% interest in the house that is jointly occupied (subject to ownership by a trust, third party or another entity). If the house is on a property owned for business purposes before the relationship commenced it might be restricted to just the home and not the business.

7. Who has to pay for the household and children’s expenses when one person moves out?

Generally both parties are liable for outgoings that relate to the relationship property, for instance, rates and mortgages. Living expenses are another story. The remaining occupant can be liable to the other party for “occupation rent” – a market rent to the party that is not in occupation. Children’s expenses should be met by both parties but this can only really be enforced through child support or maintenance.

8. My spouse wants to leave and take our children. Do I have any rights to stop them doing that?

Yes. Where children reside is a guardianship decision. Who has the day to day care of the child is a matter that has to be determined with reference to the best interests of that child. Applications can be brought to the Court in such circumstances.

9. I am about to split up with my second spouse whom I’ve been with for over 15 years. We have lots of investments in our joint names although they contributed more than I did to those investments. What am I entitled to?

If they are joint investments that were obtained during the relationship then they are relationship property and there is a presumption that you will have a 50% interest in them.

10. I have earned considerably more than my second spouse of 10 years and have paid the mortgage and all living costs for all that time. If we separate, can I protect my children (of my first marriage) against losing assets to my second wife?

The best way to protect assets earned before the commencement of a relationship is by having an agreement which records how property is to be divided in the event of separation. This is called a Contracting Out agreement. Trusts are also commonly used however recent Court cases in New Zealand indicate that using trusts may not be as secure as previously thought. A Contracting Out agreement is best entered into at the start of the relationship but can be entered into between spouses at any time prior to their separation.

11. How do I protect assets that were given to me by my family?

Generally any family heirlooms (such as jewellery, furniture etc.) will remain separate property. If you place an inheritance of money into a joint bank account you risk converting that property into relationship property and therefore may be required to share that property with your partner in the event of separation. A Contracting Out agreement is often used to ensure that any inheritances are still retained as separate property in the event of separation.

12. I feel very emotional about our break-up and I worry that I will roll over and not ask for all I’m entitled to and then regret it in the future. Do lawyers help with that kind of advice as well?

Your lawyer has the duty to act in your best interests and will advise you strongly against it if you are considered to be compromising your legal position. However it is ultimately up to you what you do. A lawyer’s role is to focus on the legal aspects of your separation. The emotional aspects are best dealt with by a counsellor. Your lawyer is usually able to refer you to counselling options available in your local area.

13. I wish to leave my partner and her children – we’ve been living together for five years. Do I have to provide for her children once I leave?

Assuming that the children are the children of your partner from a previous relationship you would have no obligation to pay child support in respect to the children. However if your partner is unable to meet her reasonable financial needs she may seek maintenance from you, which indirectly will be used to provide for her children.

14. My husband wants to leave and he insists on selling our house. Can I be forced out of the family home?

No. Your husband will not be able to sell the home without your consent or a Court order. If the title is in his sole name, a notice of interest can be lodged against the title which would prevent the sale without reference to you first.

15. What is a separation agreement?

A separation agreement is an agreement that is entered into by parties who have been in a relationship but have separated and who have agreed on a division of their property. A separation agreement is signed off by the parties and their lawyers. The lawyer for each party has to certify that before signing the agreement they advised their client about the effects and implications of the agreement. Once signed, the separation agreement is binding in all circumstances and can only be overturned in exceptional circumstances. A valid separation agreement avoids the situation of having the Court divide property for parties rather than the parties themselves deciding what is appropriate with the benefit of advice from their lawyers.

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