When going through a separation, there are a range of matters that need to be resolved, including:

• dividing property;
• arranging financial support where a party cannot meet their reasonable needs;
• sorting out a parenting arrangement;
• legally ending a marriage or civil union;
• updating Wills and Enduring Powers of Attorney;
• amending beneficiaries under a trust or insurance policy;
• putting protective measures in place where there are family violence issues; and
• putting in place measures to protect yourself from a future relationship property claim.

Getting legal assistance can be helpful for parties that are unsure of their legal rights and obligations, or the processes that need to be followed to achieve certain outcomes.  As a starting point, this articles explains some of the things parties need to think about. 

Dividing Relationship Property:

The Property (Relationships) Act sets out how relationship property is to be divided between partners after they separate. When partners to a marriage, civil union, or de facto relationship of at least three years end their relationship, the presumption is that the relationship property will be divided equally between them. 

Relationship property typically includes all property that was acquiring during the relationship, or for the purpose of the relationship, plus the family home and family chattels. 

If property is acquired before the relationship begins (other than the family home and family chattels), this will generally remain the separate property of the partner that owns it.

There are occasions when equal division does not apply (for instance where the parties are in a short term relationship, where one of the parties suffer from economic disparity, or where equal division would be “repugnant to justice”

In most cases, the parties are able to reach an agreement on how to divide their property.  For an agreement to be binding and enforceable, it must meet the following requirements:

• The agreement must be in writing and signed by both parties;
• Each partner’s signature must be witness by a solicitor;
• Each partner must receive independent legal advice as to the effects and implications of the agreement; and
• The lawyer who witnesses the signature of the partner must certify that they have advised the effects and implications of the agreement.

Economic Disparity:

Where one of the parties in a relationship will have a significantly lower standard of living or income after the separation, they may be entitled to unequal division of the relationship property, in their favour. 

It will be necessary for the party suffering from economic disparity to show that their income and standard of living has been negatively impacted upon separation, by the division of functions the parties took on during the relationship (i.e. the roles they assumed in the relationship).

If there is an economic disparity, the Court may order compensation to the less well-off party, in the form of a lump sum or a transfer of property.

Spousal Maintenance:

Spousal maintenance is when one partner provides the other with financial support after a separation, because they cannot meet their own reasonable needs. This is available to partners in a marriage, civil union or de facto relationship for a reasonable period of time.

One partner’s inability to meet their own reasonable needs may be due to:

• their ability to become self-supporting;
• the responsibilities of both partners for their children;
• the standard of living whilst the partners were still together, and
• whether one partner is undertaking education or training in order to increase their earning capacity or remove the need for maintenance.

Parenting:

The care and contact of children is often another issue that needs to be addressed upon separation. It is recommended that parties record the parenting arrangements in writing to ensure certainty and less room for confusion or dispute.  Parenting agreements help the parties to plan ahead, for all things like special occasions. 

Parenting agreements are not enforceable if something goes wrong, but parties can ask the Court to turn their agreement into an Order by consent (which will make it enforceable). 

If the parties cannot agree on parenting matters they can attend the Parenting Through Separation Course, participate in mediation via the Family Disputes Resolution process, or ask the Court for help. 

When the Court becomes involved, most often a Parenting Order will be made, and this will stay in place for at least two years (unless there is a change of circumstances).  Parenting Orders that are not later varied , expire upon each child reaching 16 years old.  For this reason, Parenting Orders may not provide as much flexibility to the parties involved. 

Child Support:

Child support payments may be agreed by way of an informal arrangement or a formal written agreement.  Neither of these methods are enforceable and are at risk of not being complied with. 

Parties also have the option of making a voluntary registered agreement or to apply for a formula assessment.  Both of these methods will be mean payments are enforced by the IRD, and may therefore result in less uncertainty for the person receiving the payments.

Family Violence, Police Safety Orders, and Protection Orders:

Family violence includes physical, sexual and psychological abuse. 

Psychological abuse is broadly defined and includes verbal abuse, financial abuse (for instance preventing access to money or resources), controlling or intimidating behaviour, harassment, ill treatment of pets of a victim, damaging property of a victim, letting others witness abuse, and withdrawing or withholding access to things that will affect a person’s quality of life. 

Where a person in a domestic relationship is worried about their safety or is suffering from family violence it is recommend to immediately contact the Police on 111. 

The Police can issue a police safety order, preventing the person who committed the acts of violence from having contact with the victim or their children (for a period of up to 5 days).  If there are parenting agreement in place these will be suspended while the police safety order is in place.

The victim of family violence can apply for an urgent Protection Order from the Court.  A without-notice application will usually result in orders being made within a day or two.  Orders can include the right to exclusive occupation and use of a home and chattels. 

Other resources available for victims include the Women’s Refuge, counselling and family violence leave. Living Without Violence courses are often mandatory for perpetrators.

Divorce or Dissolution of a Marriage or Civil Union:

In New Zealand the term used for divorce is a “dissolution of marriage/civil union”.  

To have your marriage or civil union dissolved in New Zealand. An application must be made to the Family Court (either jointly by both parties, or as an individual).

In order to apply, at least one of the spouses must be living in New Zealand (even if the marriage or civil union was formed outside of New Zealand); and they must have been separated for at least two years.

Pre-Nuptial Agreements or Contracting Out Agreements:

A Pre-nuptial agreement is called a Contracting Out Agreement in New Zealand.  These types of agreements let partners decide in advance how they want to divide property if they should separate (or if either of them passed away).  Parties can agree that they do not want the usual rules to apply to them (for instance the presumption of equal division will be contracted out of). 

In order for a contracting out agreement to be enforceable it must meet the following criteria:

• The agreement must be in writing;
• Both parties must sign the agreement;
• Signatures must be witnessed by a lawyer; and
• The parties must each receive independent legal advice.

Other things to keep in mind:

It is a wise idea to ensure your Will, Enduring Powers of Attorney, insurance documents and trust deeds are still in line with what you want after you have separated. 

You can get in touch with any of our personal services experts.

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 of family law specialists who can answer your questions and put you on the right track.