We live in a society where separation and ultimately divorce seems to be as natural as marriage. In every relationship there are bound to be ups and downs but it is important to weigh-up your options seriously before rushing into a separation. This post will shed some light but its not legal advice.
But it’s not just marriages since de-facto relationships and Civil Unions are subject to the same laws in New Zealand. A separation can be extremely stressful time both during and after the formal ending of the relationship so it is wise to look at other options first before taking those final steps.
A separation has specific legal implications in a number of aspects but in layman’s terms, it simply means that your formal relationship has ended. The modern-day term for a divorce in New Zealand is the dissolution of a relationship. To bring this about the two people need to have lived apart for two years. At that point one of them can apply to the Family Court to dissolve their relationship.
Unlike many other countries where courts decide or a divorce lawyer negotiates the allocation of assets and ongoing financial support for children, that is not the case in New Zealand. These issues are clearly stated in the legislation.
Care of the children
If there are any children involved in the marriage, child custody and access need to be agreed. In strict legal terms, custody is known as day-to-day care and often the children live most of the time with one parent, typically the mother. But this is not always the case.
The second aspect regarding children is access or more formally, contact, and again this can be by mutual agreement.
However, if the parents cannot agree about either day-to-day care or appropriate times for contact with the children, then the Family Court will make the decision for them.
In times gone by, often the mother bore the financial burden of child-rearing on her own but these days the parent who does not have day-to-day care of the children should make a financial contribution. The parents can negotiate an arrangement if they wish but the amount of child support is set out by the IRD and is determined by the parent’s income.
On the topic of regular financial payments, in New Zealand, unlike other countries, one party is not expected to pay ongoing maintenance for the other party after the dissolution of their relationship.
Joint assets or relationship property
Often the most contentious aspect of a break-up is who claims to own various assets. However, the law in NZ says that there is an equal ownership and therefore allocation of joint property gained during the time of the relationship. While that seems clear, the emotions of both parties can still get in the way of reaching agreement. It is this aspect where couples need to seek legal advice.
The lawyer’s role in separation
There are a number of ways a lawyer can help with your separation. They have practical experience and training just for this purpose. However, one area that you definitely need to consult a family lawyer is about the relationship property.
Even though the law says that there will be an equal distribution of jointly-owned assets, sometimes one partner will try to force the other into a different arrangement. Further, there needs to be a formal legal document prepared by a divorce lawyer which clearly describes the specific allocation of resources. Without this document, there can be no allocation and therefore future ownership of any joint assets.
Even though both parties might reach agreement between themselves about who will own a particular asset, this will inevitably require legal work. For example, a house needs to have the ownership details changed on the Title and mortgage deeds. This can get complicated if there are multiple properties and assets involved such as a rental property therefore you are strongly advised to seek legal advice as soon as possible regarding the break-up and separation of a relationship.