We often get asked by people, ‘Why is the date of separation so important, and how do we figure out when it was?’

The date of separation is when the parties to a relationship consider that the relationship is at an end. Generally, this will be marked by an event, for instance, one person moving out of the family home, or a conversation in which it is made clear that one party no longer wishes to be in the relationship.

Sometimes there is no definitive ending to a relationship where the parties have grown apart over time, but continue living together.

Knowing when a relationship is at an end is important for determining whether the equal division rules apply to the parties’ property, as well as informing a person when they can legally apply to dissolve their marriage or civil union (you must have been living apart for 2 years in order to apply to dissolve a marriage or civil union).

The date of separation can also be important for determining parties’ property entitlement, including what property is relationship property and what property is separate property.

Relationship property usually includes the family home, vehicles, furniture, pets, jointly-owned property, income, and relationship debts. Generally once you have been in a qualifying relationship (de facto, marriage or civil union) for three years or more, on separation all relationship property will be divided equally between the parties. Conversely, separate property is not subject to the equal division rules, and will remain the property of the owner.

In some cases there may be a dispute over whether an item of property is relationship or separate property.

One of the determining factors is when the item of property was acquired. If the item of property was acquired during the relationship with relationship funds (for instance, income) then it would be considered to be relationship property, whereas if the item of property was acquired after the relationship had ended with separate funds, then it would be considered to be separate property. The date of separation can therefore take on significant importance in classifying property for division.

In one case, a husband won $2 million dollars at a casino. The husband claimed that he won the money after the parties had separated, and used money gifted to him by a third party to make the bet. The wife on the other hand claimed that the money used to bet at the casino was given to the husband by her during their relationship. The Court found in favour of the wife, and ordered that she was entitled to half of the casino winnings. While most disputes over a separation date do not have quite this big an impact, they often do have a significant influence on a property division.

If you believe there may be a dispute around the date of separation you may wish to consider confirming the end of the relationship in writing (for instance by email or text message) to minimise the risk of future disagreement.

Mikayla Turner

 

Family Lawyer
Wellington