When a couple decide to separate and get divorced there are a lot of things that need to be considered, including childcare, finances, your family home, who gets to keep what, and how you will manage your family going forward.
If you and your ex-partner remain civil and cooperate, you may find the process of separating and getting a divorce is relatively quick. However, if your divorce becomes acrimonious it will likely take longer.
Before you can apply for a divorce (dissolution of marriage order), there are a series of steps to follow…
1: You separate
Whether you and your partner agree to part, or one of you decides to leave the relationship, you don’t have to do anything “official” when you separate. There is no legal requirement to do an agreement. If the separation is amicable, then you may even get by with an informal agreement. However, in most cases it is wise to do something more formal, documenting what has been agreed to by both parties.
When are two partners considered separated?
In New Zealand you are considered separated when you are living apart. However, there are instances where you may be still living under the same roof but can still be considered separated. For example, you and your partner may both agree to separate, and be on good terms, but for financial purposes need to remain living in the same house. These instances are known as “separation under the one roof”. You will need to demonstrate to the court that both parties have mentally and physically stopped living together, and that each person is living their own separate life.
For the purposes of applying for a divorce you need to have been separated for two years before you can apply. There is a small allowance – you can try to get back together more than once during the 2-year period, as long as the total time you spend together trying to reconcile is not more than 3 months. Any more than that though and the clock resets.
Is there anything you should do straight away?
Depending on your individual circumstances this is where you may want to seek the advice of a lawyer for guidance on things to action early on. These could include…
- Making a list of your assets and debts
- Blocking joint bank accounts and credit cards – just in case your partner does something without your approval
- Ensuring your salary and any other income goes into an account only you can access.
- Making sure you’re not the only one paying the mortgage, car payment or utility bills.
- Get copies of tax returns, credit card statements, investment accounts, utility bills, bank statements, insurance policies, super accounts, etc.
- Update your Will (or if you don’t have one write one)
2: Agree how to split your financial assets
As soon as you decide to separate, you and your ex-partner can start discussing and agreeing how to divide your financial assets, liabilities, and any ongoing financial commitments. The court doesn’t need to be involved, and if the separation is amicable then you may reach an agreement quickly, without issue. However, if you don’t agree then you may need to seek legal assistance and the family court may need to intervene to decide how your relationship property will be divided and the day-to-day care of your children will be managed.
Depending on how long you have been married, if you own property, or have children together it may be wise to consider drawing up a formal separation agreement or applying for a separation order.
When you both agree to separate you can use a separation agreement to record any decisions you make. This will help to avoid future conflicts or misunderstandings.
You can make the agreement yourselves, in writing or verbally, however it must be written if it includes information about property you share. A separation agreement covers the date of your separation, how you will share the day-to-day care of your children, who will care for any pets, how you will share the repayment of any joint debt (e.g., a mortgage); and how relationship property will be divided.
If the agreement includes information about property you share, then you must also ensure you both get independent legal advice, it must be in writing and signed by both of you. The lawyer who witnesses your signature must certify that they’ve explained to you the implications of the agreement.
Once signed, the separation agreement is binding in all circumstances and can only be overturned in exceptional circumstances.
If you cannot agree on how to separate your relationship property you can apply to the court to have these decisions made for you.
Does a Separation Agreement need to be lodged with a court?
No, your Separation Agreement does not have to be lodged with a local court. However, you can choose to register the agreement in the Family Court as a ‘consent order’. This makes it legally enforceable, like a court order.
You would usually apply for a Separation Order when one person does not want to get divorced, or you cannot agree on the date you separated. This is a legal declaration that you separated at a particular date and do not have to live together. A Separation Order doesn’t cover care of children or relationship property.
3: Agree how to care for your children
If you and your ex-partner have agreed on care arrangements for your children, you can make a parenting plan without involving the courts. If you need help to reach an agreement there are mediation services available and failing that the Family Court can make decisions for you.
When you apply to have your marriage dissolved you will need to demonstrate that suitable childcare arrangements have been made. It is important to note though that the granting of a Dissolution Order does not make any childcare arrangements noted in the application a Court Order in itself. You still need to make a separate application to the court. Find more information on the care of children here
4: Apply for a divorce
To dissolve a marriage or civil union (i.e. to get a divorce) in New Zealand you need to apply to the Family Court for a dissolution order. You need to have been separated for 2 years; and one of you must normally live in NZ.
CHILDREN: You will need to demonstrate that suitable arrangements have been made for any children.
RELATIONSHIP PROPERTY: This does not need to be finalised to apply for a divorce.
Both you and your partner can ask the Family Court for a Marriage of Dissolution Order together. If you agree to appear in court together the Dissolution Order can be made on the day. If you decide not to go to court, the court will make the Order and you will be legally divorced 1 month later.
Apply for a divorce when you both agree
One party Application
If you need to apply for a divorce on your own, you ask the Family Court to make a decision (known as APPLYING for an Order). The Family Court then issues documents that you need to ensure are SERVED PERSONALLY on your ex-partner. You cannot serve them yourself, and the person who does serve them needs to complete an affidavit of service detailing how the service took place.
Apply for a divorce on your own
Need help getting your documents served?
At Docuserve we have extensive experience handling with sensitivity the service of dissolution of marriage proceedings in New Zealand and Overseas. If you have applied for a one-party application and need a professional team to get your divorce documents served, talk to us today. Click here for more information.