Big differences between the UK and New Zealand laws on separation and divorce

Are you married, with assets in the UK and New Zealand?  Perhaps you or your spouse are UK ex-pats, living in New Zealand? 

There are very significant differences between the two countries as to how your property will be treated upon divorce (dissolution).

It pays to know what these differences are if there is a prospect of you or your spouse electing to choose a jurisdiction when it comes to a divorce. Moving quickly armed with expert advice can make a huge difference to your entitlements in many circumstances that you might consider relatively “straight-forward”.

Five key differences are as follows:

1. In New Zealand, the focus is “community property”.  This means that in a marriage or relationship of over 3 years’ duration, the court will strive to divide relationship property equally. In the UK, however, in the same circumstances, the court has the power to consider a party’s needs, and apportion property as it sees fit.  The economically weaker party may end up with the lion’s share of the capital to address a lack of income/borrowing power, or the fact that they retain the primary care of the children.
2. A New Zealand court cannot make orders regarding the division of real estate outside of New Zealand (unless parties agree). A UK court, however, can make orders regarding the division of any foreign real estate owned by either party to a marriage.
3. Pensions/superannuation in New Zealand will be divided according to the proportion of pension accrued during a marriage. By contrast, recent guidance followed by the UK courts suggests that, if needs justify it, the entirety of pensions owned by either party are open to division (or account), whether they were built up before or after the relationship started. 
4. In New Zealand the court has exactly the same powers upon a de facto relationship of over 3 years’ duration as it does upon divorce of a married couple. However, in the UK, parties to a de facto relationship have very limited recourse against each other, essentially restricted to the UK family home, and financial claims they may make on behalf of their children.  (The latter are available internationally to UK ex-pats, but are also limited in scope.)
5. In New Zealand, proceedings following divorce must be filed within 12 months. In the UK, however, the right to make property claims against a former spouse never terminates, unless the person who wishes to claim remarries.

Items 1-3 above in particular mean that parties may race each other to file divorce proceedings in the two opposing jurisdictions, to suit their own ends.

Further, whilst filing proceedings in New Zealand first may shut down the possibility of proceedings in the UK, the reverse is not necessarily true: New Zealand courts may claim jurisdiction even when there are divorce-related proceedings abroad.   If parties are not careful or pragmatic, this could result in very costly competing proceedings.

There is also an added pitfall by way of (5) above: a party may believe that they have escaped any claims, with 12 months passing since a New Zealand divorce - only to find that their former spouse makes a matrimonial property claim against them in the UK, some years later.

If this is what you face it is imperative that you seek advice from a professional with knowledge and experience across both the legal systems.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.