Whether you are married, in a civil union or ‘just living together’, when your relationship comes to an end it can be stressful and confusing.
If you have recently separated from your former partner or spouse, we can help you understand your rights as contained within the Property (Relationships) Act 1976 and its amendments. We can also assist in putting together a Relationship Property Agreement, which sets out how your relationship property is to be divided.
Talking with us can make things easier when your relationship comes to an end. We can discuss your options and next steps – including updating your Will and making other arrangements moving forward.
Contact us with any questions or complete the legal toolbox form below.
How is property divided on separation?
The Property (Relationships) Act 1976 outlines the division of relationship assets and liabilities on separation. It applies to all marriages, civil unions and qualifying de facto relationships. A de facto relationship is likely to fall within the act if it has lasted longer than three years, if there is a child of the relationship, and if there is a significant interconnection of lives, living arrangements and finances.
The core principles and purposes of the Act are:
- equal standing in the relationship in terms of contribution and benefits;
- the recognition of financial and non-financial contributions;
- just and equal division of relationship property; and
- considering the interests of children.
The main position under the Act is that all relationship property is to be divided equally on separation.
What property needs to be shared?
‘Relationship property’ under the Act includes:
- the family home and chattels (regardless of who paid for them);
- property obtained during the relationship
- property used for the benefit of both parties during the relationship;
- superannuation funds accumulated during the relationship (including Kiwisaver);
- any separate property to the extent it has been intermingled with relationship property.
It does not include property acquired before the relationship that is kept separate (not used for the benefit of the relationship or by either party). It also does not include inheritances, gifts or trust property, provided that it has been kept separate.
We can assist in determining what assets are relationship property, what is separate property, how assets should be divided and in making you aware of any further implications of the Act. We can also assist in drafting and executing a binding relationship property agreement which sets out how assets are to be divided between you and your former partner or spouse
What happens to the family home on separation?
If one of you wishes to buy the other out of the family home, the bank will require that you first complete a relationship property agreement. The alternative is to sell the family home, with the proceeds to be divided between you.
Even after separation, the joint expenses (such as the mortgage owing on the family home) still need to be paid. These expenses need to be paid regardless of who is living in the property post-separation. We will be able to advise you on your ability to recover the other share of these costs, or any occupation rental, as you discuss the potential division of your relationship property.
What if there is no agreement on how assets are to be divided?
Even with our assistance, you and your former partner or spouse may not be able to reach an agreement on how to divide your relationship property.
In that case, we will be able to assist you in applying to the Court for a Relationship Property Order. This involves the Court in the process to identify relationship property, review any valuations, determine agreed values and order division of relationship property.
There is a fee associated with applying to the Court. We will assist you in applying to the Court and preparing the necessary documents to assist you in obtaining your fair share of relationship property.
How to apply for divorce?
Commonly known as a divorce, a marriage or civil union is formally ended by applying to the Court for a Dissolution Order.
In New Zealand, the only ground for legally dissolving a marriage or civil union is ‘irreconcilable differences’. This is essentially where the relationship has broken down to a point where you and your former partner or spouse will not reconcile. This can be proven by showing that you and your former partner and spouse have lived apart for two years or more.
This two year period cannot be shortened, even when you and your former partner or spouse both want to dissolve the marriage or civil union. If you have attempted to reconcile during the two year period, you can still apply for dissolution provided that you did not get back together for more than three months.
What do I need to apply for divorce?
When you apply to the Court for divorce, you need to have prepared certain documents. We can assist in preparing the documents and ensuring everything is ready for filing before the Court.
You will need:
- your completed application;
- your affidavit;
- the original, or a certified copy of, your marriage or civil union certificate;
- if you have children, information to satisfy the Court as to your arrangements for their care and welfare;
- a copy of your separation agreement or separation order (if you have one); and
- $211.50 to cover the filing fee.
What if my former partner or spouse does not want a divorce?
When applying for a Dissolution Order, the application can be made jointly with your former partner or spouse, or by yourself. If your former partner or spouse does not want a divorce, or will not agree to a joint application, or you do not want to ask them for a joint application, you can apply by yourself.
If you file by yourself, there are additional steps that we can assist you in completing. The documents will need to be served on your former partner or spouse by someone other than yourself. That person will also need to complete an Affidavit of Service proving to the Court that the documents were served. If you do not know where your former partner or spouse is, we can assist in asking the Court to change the way in which the documents are served.
Do I have to go to Court?
Although you are applying to the Court for a Dissolution Order, you do not need to appear in Court.
If you choose not to appear in Court, you need to swear or affirm your affidavit in front of a Court Registrar, Justice of the Peace or a lawyer. If you choose to appear in Court, you do not need to swear or affirm your affidavit before appearing in Court.
If you choose not to appear in Court and your Dissolution Order is granted, you will be legally divorced one month after the date the Dissolution Order is made. If you choose to appear in Court and your Dissolution Order is granted, the divorce will be final on the day you appear and the Order is made.