Separation in New ZealandWhat Should You Do First?

Separation can bring a lot of uncertainty. You may be wondering what happens to the family home, how your property and finances will be divided, where your children will live, or whether you need to make any formal arrangements with your former partner.

Knowing where you stand legally - and what you should avoid doing - can make the next steps much easier.

Why it matters

Separation is one of life's most stressful experiences, and important decisions often need to be made at a time when emotions are running high.

The decisions you make early on can affect your property, finances, living arrangements and children. Even when a separation is amicable, it can be useful to understand your legal position before agreeing to something that may be difficult to change later.

Getting legal advice early doesn't necessarily mean starting a dispute. A good family lawyer can help you understand your options, identify the issues that actually need to be resolved and help you find a practical way forward.

You may suddenly be wondering: What happens to our home? Who pays the mortgage? What happens with the children? Do we need to divide everything 50/50? And do I actually need a lawyer?

Some separations are relatively straightforward. Others involve property, KiwiSaver, businesses, trusts, children or financial arrangements that make the legal position much less obvious.

Understanding the questions that may need to be addressed can make it easier to work out what happens next - and what kind of legal help may be useful.

Why does getting the right information early matter?

The decisions made around the time of separation can affect property, finances, living arrangements and children.

Even when two people separate amicably, there can be legal issues that aren't immediately obvious.

Getting legal advice doesn't necessarily mean starting a dispute. A family lawyer can explain how New Zealand law may apply to the particular circumstances, identify issues that may need to be considered and help clarify the available options.

Sometimes knowing where you stand legally can actually make it easier to reach an agreement.

Are you legally separated as soon as you decide the relationship is over?

Separation and divorce aren't the same thing in New Zealand.

A couple can be separated without being divorced, and there isn't necessarily a single formal document that marks the beginning of every separation.

The date and circumstances of separation can nevertheless become important in relation to various family and financial matters.

If there is uncertainty or disagreement about when a relationship ended, that can potentially become relevant later.

Do you have to be married for separation law to matter?

No.

New Zealand family and relationship property law isn't limited to married couples.

Civil unions and many de facto relationships can also have important legal consequences when they end.

This is something people sometimes overlook - particularly where a couple has lived together for years but never married.

The nature and duration of the relationship can be relevant to which legal rules apply.

What happens to the family home after separation?

For many couples, the family home is both their largest financial asset and one of the most emotionally difficult issues to deal with.

Questions can arise about:

• •Who continues living in the property
• •What happens to the mortgage and other expenses
• •Whether the property will eventually be sold
• •Whether one person may retain the home
• •How the property fits into the wider relationship property position

An important point many people don't realise is that whose name appears on the title doesn't necessarily provide the complete answer about what happens to the family home after separation.

The legal position depends on the particular circumstances and applicable relationship property rules.

Is everything automatically divided 50/50?

Not necessarily in the simple way people often imagine.

New Zealand's Property (Relationships) Act 1976 contains important equal-sharing principles where the relevant rules apply, but that doesn't mean every asset owned by either person is automatically cut in half.

Questions can arise about relationship property and separate property, as well as the treatment of the family home, debts, KiwiSaver, businesses, inheritances, trusts and property owned before the relationship.

The details of the particular relationship and assets can matter.

What happens to KiwiSaver when you separate?

KiwiSaver can be relevant to a relationship property settlement.

People sometimes assume that because a KiwiSaver account is held in one person's name, it automatically remains entirely outside the relationship property picture.

The position can be more complicated, including in relation to value accumulated during the relationship.

A relationship property lawyer can explain how KiwiSaver may be treated in the particular circumstances.

What happens if one of you owned property before the relationship?

Owning an asset before entering a relationship doesn't necessarily answer how it will ultimately be treated following separation.

The type of property, how it was used during the relationship and what happened to it over time can potentially be relevant.

The family home can be particularly important, and separate property can also become more complicated where assets or funds have been mixed or used within the relationship.

This is one of the areas where individual circumstances can make a significant difference.

What happens with the children?

Separating as a couple doesn't end either parent's role in their children's lives.

Questions may arise about day-to-day care, contact, schooling, holidays, important decisions and where the children will live.

Parents are often able to reach their own arrangements.

Where they can't agree, New Zealand has processes for dealing with parenting disputes, which can include Family Dispute Resolution and, in some circumstances, the Family Court.

The welfare and best interests of the child are central to decisions concerning their care.

Does shared care have to mean 50/50?

Not necessarily.

Parenting arrangements don't automatically require children to spend exactly half their time with each parent.

Different arrangements can work for different families depending on matters such as the children's ages, schooling, existing routines, parents' locations and individual needs.

The legal focus isn't simply on dividing time equally between adults.

Can one parent move away with the children?

Relocation can become a significant legal issue following separation.

A proposed move to another part of New Zealand - or overseas - may affect existing parenting arrangements and the children's relationship with the other parent.

Where parents or guardians don't agree about relocation, the legal issues can become complex.

This is an area where finding a family lawyer with relevant experience can be particularly important.

What financial information may become relevant?

Relationship property discussions can involve a much wider financial picture than simply the balance in a joint bank account.

Depending on the circumstances, relevant information may concern:

• •Property and mortgages
• •Bank accounts
• •KiwiSaver
• •Investments
• •Loans and other debts
• •Businesses or company interests
• •Trusts
• •Significant assets
• •Other financial arrangements

A lawyer dealing with a particular separation can explain what information may be relevant to the issues involved.

What if you and your former partner already agree on everything?

Agreement can make separation much easier - but there can be a difference between agreeing in principle and creating a legally effective arrangement.

Certain family law and relationship property arrangements can have particular legal requirements.

A family lawyer can explain whether any formal legal steps are required in the particular circumstances.

Having lawyers involved doesn't necessarily mean turning an amicable separation into a dispute.

Does speaking to a family lawyer mean going to court?

No.

This is one of the biggest misconceptions about family law.

Family lawyers assist people with early legal advice, agreements, negotiation, mediation, relationship property settlements and parenting arrangements, as well as court proceedings where they are required.

Many family law matters never result in a judge deciding the outcome.

The role of a lawyer can simply be to help someone understand the legal position and find a practical way forward.

When might you need a family lawyer?

There isn't one answer that applies to every separation.

Legal assistance can be particularly relevant where questions arise involving:

• •The family home or other significant property
• •Relationship property
• •KiwiSaver
• •Businesses or trusts
• •Parenting arrangements
• •Relocation with children
• •Significant debts
• •Disagreement about property or finances
• •A proposed agreement between former partners
• •Family violence or safety concerns
• •Uncertainty about legal rights or obligations

The type of lawyer required can also depend on the issues involved.

Why does finding the right family lawyer matter?

"Family law" covers a surprisingly wide range of legal problems.

Someone who needs straightforward assistance documenting an agreed separation may have very different needs from someone dealing with a complex relationship property dispute, business assets, trusts, relocation or a contested parenting matter.

The most senior lawyer isn't automatically the best fit, and neither is simply choosing the first family lawyer you find.

Relevant experience, communication style, approach to resolving disputes, availability and clarity around fees can all matter.

The right lawyer should help you understand the issues that are relevant to your situation and make an already difficult process easier to navigate - not more confusing.