What is a separation agreement and do we need one?
If your relationship (whether by marriage, civil union or de facto) ends and you decide to live apart, it is wise to make a record of any decisions you both agree to in the form of a written separation agreement. This can help to avoid future conflicts or misunderstandings.
You can also use a written separation agreement as proof that you have been separated for at least two years, if you later decided to get a divorce. It’s not necessary to have a separation agreement in order to get a divorce, or to qualify for a Sole Parent Support benefit from Work and Income.
A separation agreement should state:
- the fact that you and your spouse or partner are separating
- the date of your separation
A separation agreement can also include:
- any agreements about the day-to-day care of your children
- how contact with the children will be arranged (custody and access)
- how relationship property will be divided
If the separation agreement is to include how you will divide your property, a lawyer will have to certify that you each received legal advice. Otherwise the agreement can be informal and does not require the involvement of lawyers or the court.
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What is a separation order and when would we need one?
A separation order is a Family Court order stating that you and your partner live apart.
You might need to apply for one if one of you wants to separate but the other does not.
A separation order can also be used as proof that you’ve lived apart for at least two years if you later decide to divorce - however it’s not a necessary prerequisite to an application for a divorce.
You also don’t have to have a separation order to qualify for the Sole Parent Support benefit (formerly known as the DPB).
Read more about separation orders when both of you agree to separate or when one of you doesn't agree, on the Ministry of Justice website.
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Can we separate without getting lawyers or the Family Court involved?
It depends on whether any issues arise which require you to go to court.
You may need to go to the Family Court to:
If the judge allows or directs you to have legal representation and you can’t afford a lawyer, you may be eligible for legal aid.
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What do I need to do to get a divorce?
To get a divorce, you need to apply to the Family Court. The only grounds for divorce is that your relationship has broken down and is at an end – and the only way to prove this to the Court is by living apart for at least two years. Note that this can include brief periods of living together for a total of up to three months - but the court must be satisfied that these were attempts at getting back together.
At least one of you must be domiciled in New Zealand when you make the application. (i.e. it is your permanent home, even if you have been living overseas or you entered into marriage or civil union overseas) when you make the application.
Once you’ve been separated for two years you can contact the Family Court to apply for a dissolution order. You can apply together with a joint application, or you can apply alone. The process for applying varies depending on whether you are applying jointly or singly, and – in the latter case - whether the other party agrees or disagrees with your divorce application.
You can apply for a dissolution order using forms on the Family Court website (see the links above) or your nearest courthouse. There is a fee of around $210 to apply for a dissolution (you can apply for a fee waiver if you can’t afford the fee).
You will also need to include a sworn written statement (affidavit) with your application, stating that;
- at the time the application is filed, you will have been living apart for at least two years, and
- you’ve made arrangements for the care of your children, or there is a good reason why you haven’t made arrangements.
You don’t need a lawyer to make the applications, but if you want information on how the law on dissolution applies to you, you can get advice from a specialist family lawyer at your own expense (legal aid is not available for dissolution order applications).
More about the court process for divorce proceedings is on the Ministry of Justice website. You’ll need to include a certified copy of your marriage or civil union certificate along with your application.
If neither of you contests the divorce then the application will be considered by the Court Registrar. If the Court Registrar makes a dissolution order it will take effect one month after the day it is made.
If the dissolution application is contested or one party chooses to appear in court, then a court hearing will be scheduled which both parties must attend and a Judge will consider the application. If the Judge makes a dissolution order it will take effect the same day.
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What do I do if I’ve been served with divorce papers?
If you have been ‘served’ with a copy of an application for dissolution of marriage or civil union (i.e. "divorce papers"), this means your partner has applied for a divorce. Once you receive the papers you have 21 days to defend the application (slightly longer if they are served to you outside of New Zealand).
If you don’t want to oppose the application, you won't have to do anything. The application will be handled by a Court Registrar rather than a Judge, you won’t have to go to court, and your divorce will be final (one month after the order is made).
If you want to oppose the application for a divorce, you need to file a Notice of Defence and an affidavit, which you can download from the Ministry of Justice website or obtain from your nearest Family Court. You can oppose the order on the grounds that you haven’t been separated for the necessary two years.
The application will go to a Court hearing before a Family Court Judge. At the hearing, the Judge will make the dissolution order (divorce) final if he or she is satisfied that;
- you have been living apart for two or more years, and
- you’ve made arrangements for the care of your children, or there is a good reason why no arrangements have been made
More information about how to respond to a divorce application is on the Ministry of Justice website.
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Do we need to have sorted out our relationship property before we can get a divorce?
No you don’t need to have sorted out your shared (relationship) property before you get a divorce, and the Family Court will not deal with this as part of the dissolution application. However if you can’t come to an agreement about how your relationship property should be shared and you need the Court’s help, you must apply within 12 months of the dissolution order taking effect. You can read more about this on our Relationship property page.
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Am I legally obliged to financially support my partner when we separate?
In some circumstances a person can be required to financially support their ex-partner for a limited period of time, if the ex-partner is unable to support themselves.
If you and your ex-partner are in this situation then you might agree to a plan in which you help your partner to cover their living costs for a period of time.
If you are unable to come to an agreement on this issue, your ex-partner might consider applying to the Family Court for a maintenance order. If granted, the order would require you (the liable partner) to pay maintenance to your ex-partner for a specified period of time. Maintenance orders can be administered by the Inland Revenue.
If you have dependent children, you may have to pay child support.