United States Legal Documents


Divorce & separation

These forms include separation agreements, petitions for dissolution of a marriage and other divorce related documentation suitable or the US.

18

How to: The division of property when a marriage, civil union or de facto relationship ends

Introduction

The property of married, civil union and de facto couples (including same-sex couples) who have lived together for at least three years is divided (if there is a dispute) according to 'equal-sharing rules' under the Property (Relationships) Act.

The Property (Relationships) Act consists of a single set of laws that, with some exceptions, applies in the same way to married, civil union and de facto couples and also to when one of the spouses or partners dies.

If there is no dispute and a couple wishes to separate, then you may enter into a Separation Agreement.

If you've entered into a valid Property Agreement, the relationship property will be divided according to the terms of that agreement and not by the PROPERTY (RELATIONSHIPS) ACT  (this is referred to as "contracting out" of the Act). However, the agreement must be made according to strict requirements (including each party receiving independent legal advice), otherwise the agreement is invalid: see How to enter into your own property agreement.

The other option is a Pre-nuptial Agreement which essentially is again "contracting out" of the Act.


What is a "de facto relationship" under the Property (Relationships) Act?

A de facto relationship means a relationship between a woman and a man, or a woman and a woman, or a man and a man, who:

  • live together as a couple, but are not married to each other, and
  • are both 18 or older

In deciding whether two people live together as a couple, the court considers all the relevant circumstances, including any of the following if they are relevant:

  • the length of the relationship
  • the nature and extent of common residence
  • whether or not the couple have a sexual relationship
  • the degree of dependence or interdependence between the two people, and any arrangements for financial support between them
  • the ownership, use and acquisition of property
  • the degree of mutual commitment to a shared life
  • the care and support of children
  • the performance of household duties
  • the reputation and public aspects of the relationship

No single factor is essential for the two people to be considered as living together as a couple.

A de facto relationship ends if the two people cease to live together as a couple.

How long must we have lived together to be covered by the equal-sharing rules?

The equal-sharing rules apply to your marriage, civil union or de facto relationship only if you have lived together for at least three years.

A marriage, civil union or de facto relationship of less than three years is called a "relationship of short duration", and in general is not covered by the equal-sharing rules. See below, Marriages, civil unions and de facto relationships of `short duration' (less than three years)".

What if a married or civil union couple were in a de facto relationship immediately before?

In that case the length of the de facto relationship is counted in determining whether or not the marriage or civil union is of "short duration".

For example, if a couple have been married for two years but also lived together as a de facto couple for two years immediately before that, the couple is treated as having been married for four years.

"Relationship property" - The presumption of equal shares

The PROPERTY (RELATIONSHIPS) ACT classifies property under two headings: "relationship property" and "separate property".

Relationship property is divided equally, unless there are extraordinary circumstances that make equal sharing "repugnant to justice", in which case the relationship property is divided according to the contributions that each party made to the relationship.

In the assessing of the different contributions, financial contributions do not rate any more highly than contributions of other kinds, such as caring for children or performing domestic tasks.

There is just one rule for all relationship property - it is all divided equally unless there are extraordinary circumstances that make equal sharing repugnant to justice.

Separate property remains separate

In general, separate property (that is, all property not classed as relationship property) remains the property of the person who owns it and is not divided. It includes -

  • property that the parties owned before the marriage, civil union or relationship began and that they kept separate during it
  • any gifts and inheritances that the parties received during the marriage, civil union or relationship and that they kept separate

Separate property also includes all property acquired out of separate property, and the proceeds of selling any separate property.

But if an increase in the value of one party's separate property, or any income or gains derived from the property, is caused wholly or partly by the "application" of relationship property, then the increase, or the income or gains, is relationship property, not separate property.

Similarly, if an increase in the value of one party's separate property, or any income or gains derived from the property, is caused wholly or party by the actions of the other party, the increase, or the income or gains, is treated as relationship property, and is divided according to each party's contributions to the increase. This applies whether the other party's actions caused the increase directly or indirectly.

Marriages, civil unions and relationships of "short duration" (less than three years)

The equal-sharing rules apply to your marriage, civil union or de facto relationship only if you lived together for at least three years. A marriage, civil union or de facto relationship of less than three years is called a "relationship of short duration".

In the case of marriages or civil unions of short duration, special rules apply to decide how the property is divided, which mean that instead of there simply being equal shares, the property is divided according to the contributions the parties made to the marriage or civil union. In the case of de facto relationships of short duration, the Act doesn't apply at all (unless there are special circumstances, such as there being a child), which means that your legal rights will be determined by the ordinary rules of property ownership.

The court can decide to treat a marriage, civil union or de facto relationship of three years or more as if it were a relationship of short duration, if the court thinks this is just in all the circumstances.

Marriages and civil unions of short duration - In the case of a marriage or civil union of less than three years, equal sharing does not apply to -

  • the family home or a particular family chattel if it was owned wholly or substantially by one spouse or partner at the start of the marriage or civil union, or
  • the family home or a particular family chattel if it came to one spouse or partner, after the marriage or civil union began, by succession, by survivorship, as the beneficiary under a trust, or by gift from a third person, or
  • the family home and all the family chattels if the contribution of one spouse or partner to the marriage or civil union was clearly disproportionately greater than that of the other

In these cases, the share of each spouse or partner in the property in question is determined according to their contributions to the marriage or civil union.

In the case of relationship property other than the family home and chattels, each spouse or partner is entitled to share equally in the property unless his or her contribution to the marriage or civil union has been clearly greater than that of the other, in which case the shares are determined according to their contributions to the marriage or civil union.

De facto relationships of short duration - In the case of a de facto relationship of less than three years, the courts have no jurisdiction to divide property under the Act. This means that, in general, you are entitled only to property that you have legal title to: for example, if a house is owned jointly, you are entitled to a half-share. 

However, there is an exception to this, which applies when the court is satisfied

  • either that
    • there is a child of the relationship, or
    • the partner applying for division under the Act made a substantial contribution to the de facto relationship, and
  • that it would create serious injustice if the court didn't make an order under the Act

When this exception applies, the share of each de facto partner in the relationship property is determined according to each partner's contribution to the relationship.

What orders can the court make in dividing the property?

The court can make various orders in relation to the property or to a specific item of property to give effect to the division, such as ordering property to be sold or, in the case of the home, ordering that one party has the right to occupy the property. The court considers the interests of any dependent children.

In determining the amount and value of the property the court takes into account any outstanding debts.

Lump-sum payments to off-set future differences in income and living standards

The court may award a lump-sum payment to one party, or order a transfer of relationship or separate property, if the income and living standards of one party are likely to be significantly higher after the relationship ends than those of the other party, because of the effects of the division of functions within the marriage, civil union or de facto relationship.

This power is aimed at redressing the economic disadvantages faced by a partner who has not pursued a career while the other partner has – for example, if one partner supports the other through tertiary study or looks after the children.

Agreements to divide relationship property

If you've entered into a valid property agreement, the relationship property will be divided according to the terms of that agreement and not by the PROPERTY (RELATIONSHIPS) ACT  (this is referred to as "contracting out" of the Act). However, the agreement must be made according to strict requirements (including each party receiving independent legal advice), otherwise the agreement is invalid: see How to enter into your own property agreement.

If you can't agree between you on how to divide the property, you can apply to the Family Court or High Court to deal with the question under the provisions of the Act.

Dividing property under the Act when one of the couple dies

The new laws that came into effect in 2002 extended the equal-sharing rules so that they now apply not only when a marriage, civil union or de facto relationship breaks up, but also when one of the couple dies.

In that case, the surviving spouse or partner has the choice of either

  • having the relationship property divided under the rules in the PROPERTY (RELATIONSHIPS) ACT 1976, or
  • receiving whatever that spouse or partner is entitled to under the deceased's will or, if there is no will, under the statutory "rules of intestacy"

See How to contest a will and How to deal with a relative dying without a will.

Time limits for applying for property to be divided under the Property (Relationships) Act

If you have split up from your spouse or partner, you must apply to the Family Court within

  • 12 months after your marriage or civil union is dissolved, or
  • three years after your de facto relationship has ended

The Court can decide to extend the time limit, even if the time limit has already passed.

If your spouse or partner has died, and you choose to apply under the Act for relationship property to be divided, the relevant time limits depend on the size of your spouse's or partner's estate:

  • If it is a small estate that doesn't require a grant of administration from the High Court, you must complete a formal notice recording your choice within six months after the death of your spouse or partner, and apply to the Family Court within 12 months after their death.
  • If it is a larger estate requiring a grant of administration from the High Court, you must complete a formal notice recording your choice within six months after the date of the grant of administration, and then apply to the Family Court within 12 months after the date of the grant of administration.

Again, the Court can decide to extend these time limits, even if the relevant time limit has already passed.

Other law changes made in 2002

The changes that were made to the PROPERTY (RELATIONSHIPS) ACT in 2002 were accompanied by other changes giving de facto partners many of the same rights as people who are legally married:

  • Family protection claims - De facto partners can now apply to the court under the FAMILY PROTECTION ACT 1955 if they think that their deceased partner has not properly provided for them. See How to contest a will.
  • The "rules of intestacy" (when a person dies without a will) - The laws determining how a person's property is distributed if they die without leaving a will (called the "rules of intestacy") were amended so that a de facto partner has the same status as a legal spouse. For those rules, see How to deal with a relative dying without a will.
  • Spousal maintenance - The provisions in the FAMILY PROCEEDINGS ACT 1980 allowing for the court to award spousal maintenance to a spouse or ex-spouse now apply also to de facto couples. See How to apply for spousal or de facto maintenance.
Cautionary notes
  • Before a couple makes any agreement for the division of their property should they break up, each party must receive independent legal advice, otherwise the agreement is not valid.

  • Difficulties can occur when classifying property as either relationship or separate property, especially when -
    • it was inherited by one spouse or partner and has since been intermingled with relationship property, or

    • it was acquired in contemplation of a marriage, civil union or de facto relationship, or after a couple separated, or

    • it concerns insurance policies or superannuation funds

How to enter into a property agreement

Introduction

The property rights of both married and de facto couples (including same-sex couples) who have lived together for three years have been governed by the same equal-sharing rules in the PROPERTY (RELATIONSHIPS) ACT. In April 2005 civil unions were established as a legally recognised form of relationship, and civil union couples who break up are now treated the same as married couples under the Property (Relationships) Act.

These couples have the option of either making their own property agreement (referred to as "contracting out" of the Act), in which case their property will be divided in ways that they specify in the agreement, or to not make any agreement of their own, in which case they will automatically be covered by the equal-sharing rules in the Act.

A couple who decides to contract out of the Act will need to follow some special procedural rules (including each person getting independent legal advice) in order for the agreement to be valid.

Married, de facto and civil union couples who have lived together for less than three years are usually not covered by the equal-sharing rules. They too may wish to make their own property agreements to avoid uncertainty. See below,"Marriages, civil unions and de facto relationships of less than three years (`short duration')".


If you wish to prepare your own Property Agreement this Cohabitation (living together) agreement can be used. It's intended to minimise the legal expenses of people who wish to contract out of the Act.

Legal spouses or partners may "contract out" of the equal-sharing rules

The PROPERTY (RELATIONSHIPS) ACT says that a married, de facto or civil union couple, or any two people who are contemplating entering into a marriage, civil union or de facto relationship, may contract out of the Act by entering into their own agreement to determine the status and ownership of their property and how it should be divided. If they do this, the Act will not apply to them. Thus, an agreement might be made either before the marriage, civil union or de facto relationship begins, or during it, or as a way of reaching a settlement if their relationship has broken down.

The agreement can be expressed to apply while both parties are alive, or when one of them dies, or in both situations.

Property agreements entered into before a marriage have often been called "pre-nuptial" agreements. They have typically been entered into where one person brings to the marriage substantially more property than the other, and that person wishes to protect this property from a claim by the other party should they separate.

An "opt-out" system

This system works on an "opt out" basis. If a couple do nothing – that is, if they make no agreement – they will be covered by the equal-sharing rules. If they wish to avoid some or all of those rules they must actively "opt out" by making their own agreement.

What should we include in the agreement?

Your agreement should include the following terms and information:

  • what property is intended to be owned together, and in what shares (equal or some other proportion)
  • what property is to remain the separate property of each party
  • whether or not any property should no longer be classed as separate property because it has been or will be used jointly
  • who owns any gifts made by one party to the other, or any gifts from third parties

What are the special procedural requirements?

The special requirements that must be met for a "contracting out" agreement to be valid are as follows:

  • The agreement must be in writing.
  • It must be signed by both parties.
  • Each of you must have received independent legal advice.
  • Each party's signature must be witnessed by a solicitor, who must certify that the effect and implications of the agreement were explained to the signing party.

What if the special requirements are not met?

If these special requirements are not met, the agreement is invalid. Your situation will therefore be covered by the provisions of the Act (see How property is divided when a marriage, civil union or de facto relationship ends).

However, the court can validate an agreement that doesn't comply with the special requirements, if the failure to comply has not materially prejudiced either party's interests.

Court's power to cancel an agreement if "serious injustice"

The court may rule that your agreement is invalid if the court believes that it would cause "serious injustice", even if the agreement complies with the special requirements.

"Serious injustice" is a higher threshold than that which applied to contracting-out agreements by married couples under the old law before 1 August 2001 (de facto couples weren't covered by the equal-sharing rules under the old laws, and so the issue of "contracting out" did not arise for them). Previously, the court could invalidate the agreement only if it would be "unjust" to give effect to it. This change means that the courts are now less likely to overturn agreements.

In deciding whether the agreement would cause serious injustice, the court considers:

  • the provisions of the agreement
  • how much time has passed since the agreement was entered into
  • whether the agreement was unfair or unreasonable when it was entered into
  • whether the agreement has become unfair or unreasonable in the light of changed circumstances since it was entered into
  • any other relevant matters

De facto couples contracting out of the Act before February 2002

De facto couples who made "contracting out" agreements before 1 February 2002, in anticipation of the Act coming into force on that date, had to follow the special procedural requirements if they made their agreement on or after 1 August 2001. Otherwise the agreement they made is invalid.

A contracting out agreement made by a de facto couple before 1 August 2001 is valid whether or not it followed the special requirements, assuming the agreement is valid under the ordinary rules of contract law. This means, for example, that the agreement does not have to be in writing for it to be valid.

How were married couples affected by the new laws introduced in February 2002?

The position of married couples wishing to contract out of the equal-sharing rules remained substantially the same after February 2002. Whether they made an agreement before or after 1 August 2001, the special requirements for contracting out apply to them.

But after 1 August 2001 a contracting-out agreement made by a married couple is subject to the higher "serious injustice" threshold, even if the agreement was made before 1 August 2001 under the old MATRIMONIAL PROPERTY ACT.

Marriages, civil unions and relationships of less than three years ("short duration")

The equal-sharing rules in the PROPERTY (RELATIONSHIPS) ACT 1976 usually apply to your marriage, civil union or de facto relationship only if you lived together for at least three years. A marriage, civil union or de facto relationship of less than three years is called a "relationship of short duration".

  • In the case of marriages or civil unions of short duration, special rules apply to decide how the property is divided. Instead of there simply being equal shares, the property is divided according to the contributions the parties made to the relationship.
  • In the case of de facto relationships of short duration, the Act doesn't apply at all (unless there are special circumstances, such as there being a child).

If you are in either of these situations you may wish to enter into your own property agreement to determine how your property is to be divided and to avoid the uncertainty of a property dispute. An agreement can make a property settlement happen quickly and efficiently, avoiding both considerable emotional stress and the legal costs involved with court proceedings.

Your agreement will not have to meet the special procedural rules that apply to "contracting out" agreements.

Sunset clauses

Property agreements sometimes contain a "sunset clause". This is a clause that provides that the agreement will automatically become null and void after a specified length of time.

Cautionary notes
  • It is vital that you obtain independent legal advice before signing any agreement contracting out of the equal-sharing rules, otherwise the agreement will not be binding.
  • It is also important that you obtain legal advice to ensure that the agreement cannot later be challenged in court under ordinary principles of contract law.
  • A couple might enter into a property agreement before acquiring any substantial asset or property together. This is a sensible measure as it provides clear guidelines as to what will happen should the marriage, civil union or de facto relationship end.

How to take action against harassment

Introduction

If you are being harassed, you may be able to apply to the District Court for a restraining order under the HARASSMENT ACT 1997. This Act gives protection to victims of harassment who are not protected under the DOMESTIC VIOLENCE ACT 1995.

What kinds of behaviour can I get protection against?

Whether you can get protection under the Act depends on whether the behaviour in question comes within the meaning of "harassment" as the word is defined in the Act. Under the Act, "harassment" means a pattern of behaviour directed against you that includes doing to you any "specified act" on at least two separate occasions within a 12-month period.

A "specified act" is defined as:

  • watching or loitering near your home, business, workplace or any other place that you go to for any purpose, or preventing or hindering you having access to or from that place
  • following, stopping or accosting you
  • entering, or interfering with, property in your possession
  • making contact with you, whether by phoning you, writing to you or in any other way
  • giving offensive material to you, or leaving it where you will find it or where it will be given to you or brought to your attention
  • acting in any other way that causes you to fear for your safety, if a reasonable person in your circumstances would also fear for his or her safety

How do I obtain a restraining order?

If you are being harassed, you should apply to your local District Court for a restraining order to be made against the person harassing you (the "respondent"). The application is made "on notice", which means that the respondent is notified about your application. The court will hold a hearing, and the respondent is entitled to attend and be heard there.

You cannot apply for a restraining order if you are or have been in a domestic relationship with the other person. If that is the case, you will be covered by the protection offered under the DOMESTIC VIOLENCE ACT 1995 (see How to obtain a protection order under the Domestic Violence Act).

The preconditions for the court making an order

There are five preconditions that must all be met before the court will issue a restraining order. These are that:

  • the perpetrator has harassed or is harassing you
  • the order is necessary to protect you from further harassment
  • the behaviour is causing you or threatening to cause you distress
  • the behaviour would have the same effect on a reasonable person in your circumstances
  • the degree of distress caused by the behaviour justifies the order being made

What is the effect of a restraining order?

A restraining order prevents the respondent from harassing or threatening to harass you. It also prevents the respondent from encouraging anyone else to harass you. The court can impose any special conditions that are necessary to protect you.

The order stays in force for as long as the court considers necessary.

What happens if the order is breached?

It is a criminal offence to breach a restraining order without a reasonable excuse. The penalty is a prison term of up to six months or a fine of up to $5,000. The maximum prison term increases for repeated breaches.

Criminal harassment

As well as making it a criminal offence to breach a restraining order, the Act also sets up a criminal offence of harassment that will apply even if a restraining order has not already been made. This offence is committed if:

  • a person harasses you with the intention of causing you to fear for your safety or for the safety of a member of your family, or
  • a person harasses you knowing that the harassment is likely to cause you, given your particular circumstances, to have such a fear

The penalty for this offence is a prison term of up to two years.

Cautionary notes
  • The court will not make a restraining order unless all of the requirements of the Act are met. It is therefore important that you consult a lawyer to advise you as to whether a court would make an order in your situation and to assist you in applying for the order.

How to obtain a dissolution of marriage or civil union

Introduction

To obtain a dissolution of a marriage or civil union, you apply to the Family Court. You don't need a lawyer to do this.

The application forms are available from the court. You can also download copies of some of the necessary forms from the Family Court website at www.justice.govt.nz/family, under Legislation & legal resources / Forms.

The FAMILY PROCEEDINGS ACT 1980 introduced the new term "dissolution of marriage" to replace "divorce". It also established a "no fault" regime, which means that a dissolution can be obtained without one spouse having to be shown to be "at fault" in some way. Civil unions, which were introduced on 26 April 2005 by the CIVIL UNION ACT 2004, are dissolved by the same process as marriages.

The grounds on which the court will make a dissolution order

The only ground on which an order for dissolution of a marriage or civil union is granted is "irreconcilable breakdown", which is established only by you having lived apart for two years. Therefore, when you have been separated for two years you can apply to the Family Court for a dissolution order.

The Family Court judge or Registrar dealing with the application is required to grant you a dissolution order if satisfied that –

  • you and your spouse or partner have been separated for two years, and
  • appropriate arrangements have been made for the care of any children of the relationship

How do we prove that we have been living apart for two years?

It is sufficient if you state that you have been living apart for two years in the affidavit that accompanies your application for dissolution (see below). You do not need to have made a formal separation agreement with your spouse or partner to prove the period of separation.

Whether you and your spouse or partner make a separation agreement is entirely up to you (see How to enter into a formal separation agreement). If you have made a separation agreement or if the court has made a separation order (see How to obtain a separation order), you will need to include a copy of the agreement or order with your application (see below).

The issue of whether a couple have been separated for the necessary two years may be more complicated in some cases than others. In particular cases the parties may have fulfilled this requirement even though they have been living in the same house; this is because the courts look to see whether their conduct shows a commitment to living together as a couple, and it may be that the parties effectively lived separate lives despite living in the same house.

There may also have been a period of reconciliation during the two-year separation. In that case the two-year separation period will still be established if the total period of reconciliation was not more than three months.

What if my spouse or partner doesn't want the dissolution?

If the grounds for a dissolution exist (see above) but your spouse or partner doesn't want the dissolution, you can make a "single application" by yourself (see below) and the court must make the order. In this case the procedure is more complicated than if you make a "joint application" with your spouse (see below).

Will I have to pay a fee?

Yes, there is a fee for applying for a dissolution. For details of the fee, contact the Family Court. If you are applying on your own there may be an additional cost for having the documents served on your spouse or partner (see below).

Applications made by both spouses or partners (joint applications)

If you and your spouse or partner are applying together for a dissolution order, you will need to file an application form with the Family Court. Your application form must be accompanied by an affidavit that states that you have been living apart for two or more years and that arrangements have been made for your children, including day-to-day care and maintenance (or that there is a good reason why no arrangements have been made).

You must also attach to your affidavit the original or a certified copy of the certificate of your marriage or civil union.

For copies of the relevant forms, contact your local Family Court.

Applications made by one spouse or partner alone (single applications)

You will need to make a single application if your spouse doesn't agree to the application, or if you don't know where he or she is. Your application form must be accompanied by an affidavit that states that you have been living apart for two or more years and that arrangements have been made for your children, including day-to-day care and maintenance (or that there is a good reason why no arrangements have been made).

You must also attach to your affidavit the original or a certified copy of the certificate of your marriage or civil union.

After you've filed the single application, you will need to get someone to serve a copy of the application on your spouse or partner – you cannot serve it yourself. After your spouse has been served, you must then file the following documents with the court –

  • an Affidavit of Service, signed by the person who served the copy of the application on your spouse or partner, and
  • an Acknowledgement of Service, signed by your spouse or partner

Your spouse or partner then has 21 days in which to respond and make clear if he or she intends to oppose the application.

Will there be a hearing in front of a judge?

In most cases dissolution orders are granted by the Family Court Registrar without there having to be a hearing before a Family Court judge, and therefore without you having to appear in court.

In the case of a joint application the Registrar can make the order without you having to appear if you both indicated on the application form that you agree to this.

If you've made a single application, the Registrar can make the order in the parties' absence if you have consented to this on your application form, and your spouse doesn't oppose the application and doesn't want to be heard by a judge.

How long does it take for the order to take effect?

Dissolution orders do not take effect until one month after they are made, except in those cases where the matter goes before a Family Court judge even though neither party opposes the order being made (called "undefended proceedings"). In undefended proceedings, the order takes effect immediately.

Both parties will receive a copy of the order.

When can I marry or enter into a civil union again?

You are free to marry or enter into a civil union as soon as the dissolution order has taken effect. You may apply for a Marriage Licence or Civil Union Licence on the day on which the dissolution order is granted, but the licence is not available for three days.

Mediation and counselling

The Family Court process emphasises mediation and counselling. If you wish, six hours of free, confidential counselling may be arranged by the court.

The counselling may be helpful in enabling you to reach an amicable agreement on issues such as care of the children and who is to live in the family home.

Counselling is available not only to married and civil union couples, but also to de facto couples who are having difficulties in their relationship.

Cautionary notes
  • You should obtain independent legal advice to assist you to reach formal agreements with your spouse or partner about care arrangements for your children (see How to apply for a parenting order for day-to-day care (custody) of a child) and the division of matrimonial and relationship property (see How to enter into a property agreement) and How to: The division of property when a marriage, civil union or de facto relationship ends).
  • Legal aid is not available to obtain a dissolution order, but it is available for disputes to do with relationship property, child support, spousal maintenance, and day-to-day care of or contact with children (parenting orders). For information on legal aid, see How to obtain civil legal aid.

How to enter into a formal separation agreement

Introduction

If you and/or your spouse or partner decide to separate, you can enter into a Separation Agreement. Married couples or civil union partners may also decide to apply for a separation order from the Family Court (see How to obtain a separation order).

Counselling through the Family Court

A couple intending to separate has access to free, confidential counselling through the Family Court. You should contact the Family Court Co-ordinator at your nearest Family Court. The counselling is available whether you are married, in a civil union, or in a de facto relationship.

If the break-up of the relationship has already come before the Family Court in some way - for example, if you've applied for a parenting order for day-to-day care of the children - the court will encourage you and your spouse or partner to attend counselling to attempt to reach some agreement on important issues. Any decisions reached can be formalised in a separation agreement.

Is the agreement legally binding?

A separation agreement is a legally enforceable contract, except that -

  • to the extent that the agreement deals with relationship property issues, there are procedural requirements it must satisfy in order to be legally valid (see below "Requirements for separation agreements dealing with relationship property").

  • to the extent that it deals with care arrangements for children, the agreement does not give legal rights that could be enforced in the courts. In making decisions about care arrangements, the court will be concerned only with what is in the best interests of the children. See further How to apply for a parenting order for day-to-day care (custody) of a child and How to apply for a parenting order to get contact (access) with your children.

A separation agreement may be oral or in writing.

You may wish to register your agreement with the Family Court, in which case it becomes enforceable in the same way as a court order and not merely as a legal contract.

The agreement will also provide good evidence of the fact that a separation has taken place for the purposes of an application for a dissolution of the marriage or civil union (see How to obtain a dissolution of marriage or civil union).

What issues might be dealt with in the agreement?

Strictly speaking a separation agreement is one whereby a couple agree to live apart, but it could also provide for -

  • the maintenance of one spouse or partner by the other
  • arrangements for day-to-day care of or contact with children of the relationship
  • financial arrangements for expenses
  • who will live in the couple's home
  • how the relationship property will be divided

Requirements for separation agreements dealing with relationship property

If the agreement deals with the division of relationship property, it will, if it's valid, override the provisions of the PROPERTY (RELATIONSHIPS) ACT. However, to be valid the agreement must satisfy certain strict requirements:

  • The agreement must be in writing.
  • It must be signed by both parties.
  • Each of you must have received independent legal advice.
  • Each party's signature must be witnessed by a solicitor, who must certify that the effect and implications of the agreement were explained to the signing party.

For more information, see How to: The division of property when a marriage, civil union or de facto relationship ends and How to enter into a property agreement.

Cautionary notes
  • While it is not essential to enter into a separation agreement, it is advisable to do so to clarify the parties' positions and thereby to avoid future misunderstandings. The terms of the agreement should be drafted carefully and be specific to your particular situation.
  • Before entering into any separation agreement both parties should receive independent legal advice.
  • If you separate from your spouse or partner you should get legal advice about the effect this will have on your property or assets and whether it is necessary to draw up a new will.

How to obtain a separation order

Introduction

If you separate from your spouse or civil union partner, you may decide to enter into a Separation Agreement (see How to enter into a formal separation agreement) or one party may apply for a separation order from the Family Court.

Neither of these are essential, but they may be helpful as evidence of the two-year separation period that is necessary for an order of dissolution of a marriage or civil union (see How to obtain a dissolution of marriage or civil union).

Separation and dissolution of marriages and civil unions are governed by the FAMILY PROCEEDINGS ACT 1980.

When is it appropriate to apply for a separation order?

Usually when a couple separate a formal separation order is not necessary. But if, for example, only one person wants a separation, he or she may wish to apply for an order.

How do I apply for a separation order?

Applications for separation orders are made to the Family Court. You will usually need the services of a lawyer to apply for the order. The application is heard before a Family Court judge.

Applications forms are available on the Family Court website at www.justice.govt.nz/family.

What are the grounds for making a separation order?

The judge must make a separation order if satisfied that there is such a state of disharmony between the parties to the marriage or civil union that it is unreasonable to require them to continue or resume cohabitation. (However, it is doubtful whether there could be any legal "requirement" to live together in any case.)

In deciding the issue the court looks at the character, personality, desires and emotions of the parties.

Counselling available through the Family Court

The Family Court emphasises the use of counselling and mediation services. When you apply for a separation order the Family Court Registrar must refer you and your spouse or partner to counselling, unless a Family Court judge decides otherwise (which usually happens if there has been any violence in the relationship).

Your counsellor will arrange with you a time and place for the counselling sessions. There may be up to six sessions. They are free and confidential.

Mediation conferences

A judge or one of the spouses or partners may ask the Registrar to arrange a mediation conference. The purpose of the mediation conference is to try to identify and clarify the matters at issue and to reach some agreement between the parties about –

  • arrangements for the care of any dependent children
  • who will live in the family home
  • financial arrangements

Mediation conferences are held at the Family Court and are chaired by a Family Court judge. The conference is not a hearing and anything said in the conference cannot be used against either party in a later court hearing.

You may have a lawyer present at the mediation conference, but it is expected that the parties will speak for themselves rather than through their lawyers.

The judge can make orders on those issues the parties agree on at the conference – for example, on issues of day-to-day care of or contact with the children. These are called "consent orders" and are enforceable in the same way as a court order. The judge will not impose an order unless both parties agree.

Cautionary notes
  • You should always seek independent legal advice when obtaining a separation order, especially as it would be desirable to have a lawyer familiar with your case when you divide the relationship property (see How to enter into a property agreement and How to: The division of property when a marriage, civil union or de facto relationship ends).

How to obtain a protection order under the Domestic Violence Act

Introduction

Applications for protection orders against domestic violence are made to the Family Court.

The relevant Act, the DOMESTIC VIOLENCE ACT 1995, is very broad, both in the types of relationships it applies to and in the type of behaviour it protects against.

Who can apply for a protection order?

You (the "applicant") can apply for a protection order against someone (the "respondent") who is being violent or abusive towards you if that person is:

  • your husband or wife, or your civil union partner or de facto partner
  • a member or your family or whanau
  • someone who ordinarily shares a household with you (such as a flatmate)
  • someone with whom you are in a close personal relationship

A boyfriend and girlfriend may well be in a "close personal relationship", even if they don't usually live together. But a close personal relationship doesn't have to be a sexual one. In deciding whether a close personal relationship exists, the court will consider:

  • the nature and intensity of the relationship (in particular, the amount of time you spend together, and where and how you usually spend that time), and
  • the length of the relationship

Although generally applications under the Act are made by women against men, a man can apply for protection against a woman or another man.

If you are not covered by the DOMESTIC VIOLENCE ACT 1995, you may be able to take action under the HARASSMENT ACT 1997 (see How to stop harassment).

What kinds of behaviour can I get protection from?

You can obtain protection under the DOMESTIC VIOLENCE ACT 1995 from any of the following types of behaviour:

  • physical abuse – such as hitting or shaking
  • sexual abuse – rape or any kind of non-consensual sexual contact
  • psychological abuse, such as:
    • intimidation or harassment – for example, shouting, insults, controlling where you go or how you spend your money
    • smashing objects in your presence
    • making threats

The Act therefore gives protection against a wide range of behaviour. If there is no direct physical abuse, the court will look to see if you are being threatened, intimidated, harassed or controlled by someone who is in a more powerful position in the relationship.

A series of acts that appear small and trivial when looked at one by one can amount to domestic violence when taken as a pattern.

How do I apply for a protection order?

You make an application for a protection order to the Family Court.

Frequently applications are made for temporary orders, which take effect immediately. These are called applications "without notice" (or "ex parte" applications), because the respondent doesn't have to be given notice of your application before the order takes effect.

To obtain a temporary order you will have to satisfy the judge that there will be hardship or risk of harm to you or to your children if the temporary order isn't made. It is therefore particularly important in preparing your application that you present all the relevant information. The Family Court will act swiftly in preparing an order, and one will usually be granted within hours. If the respondent doesn't contest the temporary order, it automatically becomes permanent after three months.

If you apply for a full protection order rather than a temporary one, your application is made "on notice", which means that no order takes effect until after the respondent is served with notice of your application and until after the respondent has decided whether or not to oppose the application. If the respondent does decide to oppose it, or simply wants to be heard by the Family Court, there will be a hearing before a Family Court judge, who will decide whether or not to grant the order.

What effect does a protection order have?

Protection orders contain standard "non-violence conditions" that apply in every case, and also "non-contact conditions" that apply unless you agree to the respondent living with you.

The non-violence conditions prevent the respondent from:

  • engaging in physical, sexual or psychological abuse towards you or any other person protected under the order (which automatically includes your children), or threatening to do this
  • damaging your property, or threatening to do this
  • encouraging other people to do any of these prohibited things

The non-contact conditions prohibit the respondent from doing things such as:

  • watching or hanging around your home or workplace
  • following you around
  • phoning or writing to you (except in emergencies or other excepted situations)

The court may also impose additional conditions, depending on your circumstances. The court is flexible in drafting an order that will give you the fullest protection that you need.

The respondent is not allowed to have a firearm, nor hold a firearms licence. You should therefore inform the court if you know the respondent has a firearm.

Protection of children

All the conditions of the order apply to your children in the same way that they apply to you. If the non-contact conditions apply, the respondent can't have contact with the children unless the court specifically allows this, in which case contact will generally be supervised.

The CARE OF CHILDREN ACT 2004 specifically deals with where a parent has applied for a parenting order to be given day-to-day care of or contact with a child and one of the parents has been violent towards the child or the other parent. In that case the court will not grant the violent person day-to-day care or unsupervised contact with the child unless it's satisfied the child will be safe. (Day-to-day care used to be called "custody" and contact used to be called "access". Parenting order is the new name for a custody or access order.)

What happens if the respondent breaches the order?

If the respondent breaches the protection order you should complain to the Police, who can then arrest the respondent without a warrant. If the Police charge the respondent, the respondent can't be given bail for 24 hours after the arrest.

Any breach of an order will make the respondent liable for a penalty of up to six months' imprisonment or a fine of up to $5,000. The penalties are even more severe if this is the respondent's third (or subsequent) conviction for a breach within three years.

What if I need to leave the family home immediately?

If you and your children need to leave your home immediately, you should contact the nearest Women's Refuge (see the "Personal Help Services" section of the telephone directory).

When you apply for a protection order you can also ask the court to make an "occupation order" or "tenancy order", giving you the right to live in the family home and prohibiting the respondent from living there.

Cautionary notes
  • You cannot get a protection order if the person committing the violence or abuse is under 17 and has not been married or in a civil union or de facto relationship. In that case you should contact the Department of Child, Youth and Family Services.
  • A lawyer will help you apply for a protection order and will ensure that the process is as quick as possible. If you cannot afford a lawyer you may be able to get civil legal aid (see How to obtain civil legal aid).

How to apply for a joint family home

Introduction

An application to register your home as a joint family home is dealt with by the District Land Registrar. You should address your application to the local office of the Land Titles Service, which you can contact through the regional offices of Land Information New Zealand. Applications must be completed in the prescribed manner.

Why apply for a joint family home?

There are many risks involved in having a small business that can be lessened by registering your land under the JOINT FAMILY HOMES ACT 1964. The advantage that this gives you is that your home is partially protected against claims by creditors.

When can land be registered under the Act?

The land may be registered in this manner if you and your spouse (or de facto partner) meet the following requirements:

  • You are the registered proprietors of the land.
  • You are able to pay all debts.
  • You are not the joint owners of any other home registered under the Act.
  • You live in a dwelling on the land.
  • The dwelling is used principally as a home.

There may be difficulties in satisfying this last requirement if the dwelling is used partly for non-residential purposes.

If any of the conditions for registration cease to be satisfied your settlement may be cancelled.

How does registering provide protection against creditors?

The effect of the registration is that your land is settled as a joint family home. Therefore an interest of $103,000 from the proceeds of the sale of the home will be protected from any creditors.

Advertising your application

As part of your application you may request that the Land Titles Service advertise your application in newspapers, in the Public Notices section. This informs creditors and potential creditors that you are applying.

If you choose not to advertise and are adjudicated bankrupt within two years of making the application, you will not receive the protection of the Act, as the registration will be void as against the Official Assignee. (See also How to undergo bankruptcy.)

Creditors may oppose registration

If you decide to advertise your application, a creditor may respond by lodging a caveat opposing registration. If this happens, you may:

  • withdraw your application, or
  • take no action, in which case your application will lapse after one month, or
  • require the caveator to appear before the High Court to show cause why the caveat should remain

If you take the matter to the High Court, after considering the facts the judge may either order the caveat to be removed or maintain it. The caveat will be maintained if the creditor shows that he or she has good cause, that the debt is a substantial amount, and that maintaining the caveat will not cause an injustice to you.

Registration of applications

If they are no caveats pending and your application satisfies the other requirements, the Registrar will enter a Memorandum on the Certificate of Title specifying who the parties are and the date of settlement.

Cautionary notes
  • The Land Titles Services (of Land Information NZ) advises prospective applicants that their applications should be handled by a lawyer.
  • A lawyer will be able to explain to you more fully the effect of a joint family home settlement, such as what happens if you separate or one of you dies.
  • If you are starting up a venture in which you wish to protect your assets, a lawyer will also be able to advise you as to how this can best be achieved (see How to create a trust).

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This Pet Custody Agreement sets out who receives custody of any pets if a couple ends their relationship.

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Complaint/Petition for Divorce for couples with children is the formal request to the court that your marriage be terminated. For use in Washington.

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The Final Judgment of Divorce (Decree of Dissolution) is the legally binding court order that declares that your marriage is officially over. For use in Washington.

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This Worksheet helps you prepare the testimony that is most often required in uncontested divorce hearings.

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The Financial Statement for Divorce Proceedings is a form for use in conjunction with a marital settlement agreement.

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This kit includes all the essential elements necessary to create a comprehensive and successful marital settlement agreement(also known as a separation agreement and property settlement agreement).

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This kit includes all the essential elements necessary to create a comprehensive and successful marital settlement agreement(also known as a separation agreement and property settlement agreement).

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Petition/Complaint for Divorce for couples without children is the formal request to the court that your marriage be terminated. For use in Washington.

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This kit contains a property division worksheet for use in Washington.

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