Questions People Frequently Ask Their Family Lawyer

 1. When can I get a divorce?

Once you have been living apart for two years you can apply for a dissolution of your marriage (divorce).

2. Will I get child support?

If your children live with you and are under 19 then you are entitled to receive child support.  If you share the care of your children (have them at least 40% of the time) then both parents may be liable to pay child support. The amount you receive is calculated using a simple formula.  For more information on the amount you should receive, or have to pay, go to: www.ird.govt.nz or call 0800 221 221.

3. Does the mother automatically get day-to-day care (previously called custody) of the children?

No, there is no preference towards the mother or father when determining day-to-day care.  The welfare of the child is the most important and guiding consideration when deciding where a child should live for most of the time.  The law specifically says that the Court must not give any preference to the mother or the father.

4. Why do I need a Will?

If you are married but separated and you die without leaving a will, your ex-spouse or partner could get a large share of your assets. It is very important to have a Will in place and update it if you have separated.

5. How do we decide what will happen to our children after we separate?

The first step is trying to reach an agreement together.  An agreement can be casual or recorded formally.  If you need help reaching an agreement then the Family Court offers free counselling.  A counsellor may be able to assist you and your partner to come to an agreement.

If you are still having difficulties then you can ask the Family Court to decide. The Court process usually involves three steps:

• Counselling.
• Mediation conference.
• Hearing – where a Judge may impose a decision on the parties.

6. How long do we have to be together before the property sharing laws take effect?

Once you have been in a relationship for three years or more (less in some circumstances), the relationship property laws will apply to you. This may mean that all of your relationship property is divided equally (unless you have a Contracting Out Agreement in place).

7. What is a Contracting Out Agreement (“COA”)?

A COA (formerly known as a pre-nuptial) is a written agreement between a couple which sets out their assets and how they want their property (including future property) to be divided in the event that they separate.

8. Why do we both need to see a lawyer when we sign a Separation or Contracting Out Agreement?

Under the law, both parties to a relationship property agreement have to obtain independent legal advice before signing the agreement; both lawyers have to certify that they have given that advice. The Agreement must also be in writing, signed by both parties and witnessed by their independent lawyers. If you do not follow these rules your agreement will not be enforceable or legally valid.

9. What is a de facto relationship?

The Property (Relationships) Act contains a checklist of factors that the court considers when deciding if a relationship is “de facto”.  The list is not exclusive and each relationship is considered individually.

A de facto relationship is a relationship between two people (either the same or different sex), who are at least 18 years old and who live together as a couple.

Factors that may indicate you are living together as a couple include:

• You have been together for a long time.
• You live in the same house together.
• You have a sexual relationship.
• You share your money.
• You are committed to a shared life.
• You have children together.
• You share the household chores.
• Other people think that you are in a relationship together.

10. The house we live in is in my name and I owned it before the relationship began. If we break up it’s still mine, isn’t it?

Not necessarily. If you live in the house together and have been together for three years or more (less in some circumstances), it is the family home and is classed as relationship property.  The general rule is that relationship property will be divided 50/50 at the end of the relationship (if the relationship has lasted more than three years).  It does not matter when the house was acquired or who owns it, if it is the family home and you have been together for more than three years, then in most cases it will be divided equally.