Separating from my partner but we have children and own property together. Where do I start?

Leaving a relationship can be overwhelming and it can be difficult to know where to start.

We recommend, as a starting point, that clients ask themselves four main questions when deciding next steps.

1. Am I safe?

This brief question can give rise to a variety of considerations.

If you have been a victim of violence, you may need to take steps to protect yourself. If your situation is urgent, you should always contact the New Zealand Police in the first instance. Otherwise, a good starting point is to get legal assistance in seeking a Protection Order.

Conversely, if you are worried your ex-partner may allege violence against you, it is a good idea to seek legal advice. This can be relevant both in the Family Court context (i.e. if a Protection Order is made), and the Criminal Court (i.e., if charges are laid against you).

2. What will separation mean for our children?

If you have children, their wellbeing during this difficult time will no doubt be your primary consideration. Stability and regular routine are important and both parents should work to ensure that occurs.

Separations can often involve high emotion and conflict. We recommend you seek external assistance to address the care arrangements for your children as early as possible, to ensure there is certainty for them.

We recommend two main ways to address this, and the option you choose will depend on what you consider will work best for you:

• Family Dispute Resolution (FDR) - This is a mediation service run by the Ministry of Justice. If it is successful, you and your ex-partner will have an opportunity to sign a Parenting Agreement that clearly records how care arrangements will proceed going forward. The cost of FDR can vary, depending on whether you are eligible for funding. The only downside in respect of FDR is that there can be delays, depending on demand in your particular area. More information about FDR can be found here

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• Informal Round Table Meeting - This is a service we offer at TODD & WALKER Law, which has the same goal as FDR, of achieving a clear agreement about the care of the children. We are happy to chair the meeting, or alternatively, the parties may wish to have a lawyer each to help them articulate their views. The advantage of this route is that there will be no delay and care arrangements can be confirmed quickly. At TODD & WALKER Law we always strive for conciliation, so that the parties can each walk away feeling that they were heard and that the agreement reached is what will best suit the children.

In the event you and your ex are unable to agree to care arrangements privately, the last resort is to consider Court proceedings. TODD & WALKER Law has an experienced team of litigators to assist you should Court proceedings eventuate.

If Court proceedings are commenced, the parties can nonetheless still strive towards a private agreement outside of Court.

If you have children, you may also be eligible for child support. What you may receive can either be agreed between you and your partner or obtained through the IRD. This is a calculation based on days of care and each parents’ income. The IRD provides for the statutory minimum which may seem inadequate. If you can come to a private arrangement for a higher amount that may be better for the children.

3. Where will I get enough money to move out and separate?

If you earn your own income this is more straight forward, however if your partner’s income has funded your family’s day to day expenses and you are concerned, they will restrict your access to funds on separation you need to consider the following:

• Make a budget before departure (if possible) and try to save enough funds for that initial part of the separation. You may be able to seek assistance from family in the short term.
• It is possible to apply to the Court for interim maintenance. This is seeking payment from your partner to cover your reasonable needs on separation until you can get on your feet.  If your partner will not negotiate directly with  you or your lawyer about this then sometimes these applications are necessary and can include your legal costs for submitting the application.  This is different to child support.

If you both have very limited means you will need to discuss your options with Work and Income New Zealand (WINZ).

4. What will we do about property?

If you and your partner have been together for 3 years or more, or if you have been in a shorter relationship but have a child together you are likely to have property attributable to the relationship or has become so by use. This is called “relationship property”.  There is also a presumption of equal sharing of this property.

We would suggest noting down what property both you and your partner own. List both what you think is separate and relationship property. Be familiar if possible, with how much cash is in savings or investments. If you are concerned your partner might hide or sell smaller items, you can always take a photograph of it.

Initial steps that should be taken include:

• Set up a separate bank account, and direct your income (or some savings) into that account.
• If the separation is reasonably amicable, decide who will stay living in the family home in the short term, and how that will be managed. For example, will that person shoulder the mortgage repayments? Or will you continue to share those expenses? If the latter option, will you then agree to share the other party’s rent costs?  If you are not amicable, you should speak to a lawyer about your options.
• Make a list of your property together and put values on all items. This should be estimated market values.  You don’t have to value every little item, just use your common sense.
• If you or your partner own a business or shares in a business, these should be valued.
• List all debts: hire purchases, credit card debts, tax debts and mortgage.

If things are amicable with your ex-partner you should discuss what will ultimately happen with the family home. Will one be able to buy the other out or will it need to be sold?  

With other assets and debts, you may also be able to agree who gets what and how these are dealt with.

The law says that any agreement about how to divide relationship property needs to be recorded in writing, and certified by a lawyer. This is essential and will provide you with certainty while also preserving your position going forward. If you do not record your agreement in writing, you could be leaving the door open for your partner to later raise the issue of property again.

If you have largely undertaken the steps above, it does make matters more straight forward for preparing the relationship property agreement (and less costly), however, if you cannot agree over how the property is to be divided it is helpful for the lawyer to have the information above ready to discuss.

Separating from your partner is a significant process to undertake, at TODD & WALKER Law we strive to make it as simple and civil as possible. If you would like to discuss your separation, contact one of our experienced family team on 03 441 2743 or [email protected] for a confidential discussion.