The end of a marriage, civil union or de facto relationship can be overwhelming. Often one or both parties are left feeling angry, anxious, or resentful.
A separation is often accompanied by an abundance of questions about the care of your children, and the division of your property. It can often be difficult to know where to start.
As a starting point, we recommend that you consider getting legal advice while things may still be amicable. We often see disagreements occurring because of misunderstandings over rights and entitlements. People often come to a crossroads when making decisions about how or when to agree on making big changes, such as one party moving out of the family home or organising for it to be sold.
If you are going through, or considering, a separation from your partner, here are some important things to consider:
1. Managing your money
If your partner’s income has largely funded your living expenses, you may be worried about how you will afford to move out when you separate. If you are concerned your partner will restrict your access to funds on separation you may need to consider budgeting before departure to ensure you have enough funds put aside for the initial part of the separation.
There is also an option to apply to the Court for an interim maintenance order. Interim maintenance requires your partner to make payments that cover your reasonable needs on separation until you get on your feet. These applications become necessary when your partner will not negotiate with you or your lawyer directly. These payments are separate to child support.
Note: If you have very limited means, we suggest seeking support from Work and Income New Zealand.
2. What happens to your property?
If you and your partner have been in a relationship for 3 years (or more) or have a child together, you are likely to have “relationship property” – that is all the assets you have acquired or used during the relationship. As a general rule, you and your partner are each entitled to half of all the relationship property. There are, however, several exceptions and special rules for different circumstances.
As a starting point, we recommend you consider the following initial steps:
- Set a separate bank account in your sole name and direct your income (and some savings) into that account.
- Create a list of what you think is separate property and what you think is relationship property.
- Note down an estimated market value of each significant item of property.
- Become familiar, if possible, with the amount of cash in your savings accounts, business financial accounts, the value of any investment accounts, and the value of any shares your or your partner own.
- Equally, become familiar with your debts including hire purchase, credit card debts, tax debts and mortgages.
Gathering as much information about your property as possible, will save you significant legal costs as your lawyer does not have to spend time requesting this from you.
If the separation is relatively amicable, we encourage you to decide with your partner who will stay in the family home in the short term, and how that will be managed. For example, who will pay the mortgage, rates, insurance, and maintenance costs – will one party pick up the bill? Will you continue to share those costs? If you agree to share those costs, will you also agree to share the other party’s rental costs? If you are unable to decide on these issues between yourselves in the short term, you should speak to your lawyer about your options.
Further down the track you will also have to 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?
The same goes for your other assets and debts, you will need to agree either between yourselves or through your lawyer who gets what and how these are dealt with.
Note: your will – if you are going through a separation, we consider that to be a significant change in circumstances that warrants you reviewing your will. On divorce (discussed below), any gift in a will to your former spouse is automatically revoked, however, this does not apply on separation only, or to civil union or de facto relationships. The Property (Relationships) Act 1976 can affect your will, we strongly recommend you seek legal advice about your will and personal affairs throughout the process of your separation.
3. Care of your Children
Stability and regular routine are of the utmost importance for your children during this difficult time.
You, and your partner, will need to make arrangements for day-to-day care that best suits the needs of you and your children. To ensure the level of disruption your children experience is kept to a minimum, we recommend you seek assistance to address care arrangements for your children as early as possible. It is not always about what the parents want.
We recommend the following ways to assist parents in reaching an agreement on the care arrangements for their children.
- Parenting Through Separation Course – this is run locally by Presbyterian Support.
- Family Dispute Resolution (FDR) – this is a mediation service that works with parties to discuss their issues constructively and reach an agreement. At the conclusion of a successful FDR meeting, the parties will have the opportunity to sign a Parenting Agreement that clearly records how the care of your children is going to work going forward. Unfortunately, there may be a delay in securing an FDR meeting depending on the demand in your region.
- Informal round table meeting – TODD & WALKER Law offer this service as an alternative to FDR, the key objective being to reach clear agreement about the care of your children going forward. We are happy to chair the meeting, or alternatively, you, and your partner, may wish to each have a lawyer present to help you articulate your views. A successful meeting will see both parties walking away feeling like they have been heard and that the agreement reached is in the best interests of the children.
If the parties are unable to reach an agreement, the last resort is to consider filing proceedings with the Family Court. Should Court proceedings eventuate, TODD & WALKER has an experienced team of litigators to assist you through the process and, where possible, support you to achieve a private agreement outside of the Court system.
4. Child Support
No matter what care arrangements are put in place for your children, both you, and your partner, will have ongoing responsibility for their financial support.
The IRD calculates the sum of child support based on the number of days the children are in your care, your total income, and your partners total income. The IRD provides for the statutory minimum child support payment, however, if that is inadequate for your children’s specific needs the parties are encouraged to reach a private agreement as to an appropriate sum.
5. Separation agreement
While you and your partner can decide and resolve all the above matters between you, only a separation agreement prepared and certified by a lawyer will give your agreement legal effect.
Having a separation agreement prepared by your lawyer is essential to preserve your position going forward and ensuring the agreement you ultimately reach is full and final.
If you have been able to have productive discussions with your partner about your property, it does make matters more straight forward (and less costly) when it comes to preparing the separation agreement. If you have found yourselves unable to agree on an appropriate division of relationship property, it is helpful to have the information about your property on hand to discuss with your lawyer.
6. Dissolution (divorce)
If you were married or in a civil union, once you have lived apart from your husband, wife or civil union partner for two years (or more), you will be able to apply to the Family Court for an order of dissolution of your marriage or civil union.
The only ground for getting a dissolution is an “irreconcilable breakdown” of the marriage or civil union. New Zealand law does not require you to show fault of one party.
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 law team on 03 441 2743 or [email protected] for a confidential discussion.
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