Separation vs Divorce: What You Should Know

Separation and divorce are difficult topics to talk about and difficult experiences to go through. The difficulty can be a barrier to finding out enough information to make a clear decision and go through the process in the best way for you. One blurred line is the difference between separation and divorce, which isn’t always obvious at first glance. Below you’ll find some of the key information to help you understand the distinction a bit better:

What are the main differences between separation and divorce?

Separation comes before divorce – a couple must agree to separate before they can get a divorce. Once a couple has been separated for at least two years, they can then choose to apply for a divorce.

Separation doesn’t have to be legally formalised a couple can technically separate just by agreeing to separate. While a formalised separation (usually via a separation agreement) can make the process easier for everyone, it’s not a requirement for separation. Meanwhile, a divorce requires a formal declaration from the Family Court, officially called a Dissolution Order.

Divorced couples are no longer married – a couple that separated while married is still considered legally married, even if it has written up a separation agreement or received a court order. A divorced couple is no longer married once the divorce is finalised, and a divorce cannot be reversed.

Non-married couples can separate – formalised separations are still possible – and common – for couples who didn’t marry. A separation agreement is often the best option for formalising the end of a de facto relationship (generally defined as non-married/non-civil union couples that have lived together for at least three years). Divorce is only applicable to marriages and civil unions.

Separation gives you time to reconsider & decide on relationship property – separation gives time to reconsider things, as well as making decisions on dividing relationship property. It is not advisable to apply for a divorce if you’ve not resolved your relationship property division. Upon divorce, a couple generally has just 12 months to agree on their own division of relationship property, otherwise the default equal sharing principle will apply.


Download our free guide to Separation Agreements

How does separation work?

A couple is generally considered to be “separated” when it’s no longer living together as a couple, and either or both people intend to be separated. Separation can even apply where the couple is still under the same roof, and intends to be in a separation. Any couple can enter a separation without any official action or legal requirement, but there are options to formalise it.

Separation can be formalised if the couple chooses, through either of two methods:

  • A separation agreement
  • A separation order from the Family Court

A separation agreement is used in almost all cases for formalising a separation, as well as preparing for a divorce, and you can find more information about Separation Agreements here. Separation orders are uncommon, and only where one of the couple doesn’t want to separate. You can apply for a separation order from the Family Court.

How are finances and property treated?

Initially, during a separation, the financial obligations of the couple are considered to be the same as they were before the relationship ended. Any changes (such as to repayments of debts and outgoings) will have to be agreed between the parties. The best way to do this might be with a separation agreement. Without an agreement, the law will split all relationship property between the couple 50-50 by default.

As for the divorce process, a separation agreement usually makes things easier by clearly stating the date of separation, and showing that there has been agreement on the division of relationship property. A couple can still get divorced without an agreement, but will have to make an agreement within 12 months of the divorce if they want to make their own decisions as to how relationship property is divided.

What about our children?

If you and your partner separate, you will need to agree on who has “day-to-day care” of the children and other important decisions. This can be done informally, but we recommend writing up a parenting plan, to clarify and set out the arrangement for looking after the children. There is also a free & popular course called Parenting Through Separation that offers practical advice on this. For a divorce to be finalised, the court will have to be satisfied with the arrangements for day-to-day care and the welfare of the children. Even after a divorce, both parents maintain guardianship of any children born or adopted in the course of the relationship. Guardianship is a legal right to help with decisions around the child’s wellbeing and upbringing.

Why should we formalise things?

If you do not formalise your arrangement either through a separation agreement or a divorce, it can create significant uncertainty for the future. Without an express separation agreement or a finalised divorce, any property claims or disputes between partners could result in a much greater financial loss down the track, and just creates more stress in the process. Getting a separation agreement and the requisite legal advice and certification will give you peace of mind and let you move on with clarity.

Download our free guide to Separation Agreements

How to get a divorce in NZ

To get a divorce in New Zealand, you would need a Dissolution Order through the Family Court. The only requirement to apply is that you have been separated (i.e living apart) for at least two years, and that one of the parties is considered “domiciled” in New Zealand, which effectively means that they either live in NZ indefinitely, or were born here and are living overseas temporarily.

Both or one of the parties can make the application to the Family Court. The process is relatively straightforward, and there is further public information available on the Ministry of Justice website.

There is also an excellent guide to divorce in New Zealand on MoneyHub, check it out here.


How can Agreeable help?

Separating is already a difficult process and we know the thought of involving lawyers only adds more stress. You can start wondering: where do we even start? Lawyers are expensive and charge by the hour, how much will it cost? How long will it take? Agreeable was founded to get you a strong agreement and legal advice with as little stress as possible.

  • For $450 you can purchase a separation agreement (click here). The software will lead you step-by-step through creating your own agreement. At the end of a short questionnaire, you’ll be emailed your draft agreement as a Word document.
  • Once completed, our team will work with you make sure the agreement is in the best shape possible.
  • Then, apply for certification with us, and we will arrange two independent lawyers (one for each of you) to certify your agreement (make it legally binding). Best of all, we’ll give you a fixed quote so you know the cost before you commit.

Check out our other articles:

The Property (Relationships) Act: A Handy Guide for Kiwis in 2023

A Guide to Buyouts: How to Buy Out the Mortgage from Your Partner

Five Helpful Tips to Save Time & Money on Certification

 

Property (Relationships) Act: A Handy Guide for Kiwis

What is the Property (Relationships) Act 1976?

The Property (Relationships) Act 1976 sets out the rules for dividing property when marriages, de facto relationships, or civil unions end. It confirms an “equal sharing” rule in New Zealand: that all relationship property must be divided 50-50 if the relationship ends, unless the parties “contract out” of the Act.


 

The key things to know about the Property (Relationships) Act 1976:

 

  • Equal division: the Act states that relationship property is to be divided equally at the end of the relationship. One spouse may make a claim to the Family Court if they feel that they aren’t receiving an equal share of the assets.
  • Does my relationship qualify? For the equal sharing rule to apply, you must be (or have been) either married, in a civil union, or a de facto relationship (see below).
  • What if I don’t want the Act to apply? You will need a certified “contracting out” agreement, either during the relationship (Relationship Property Agreement) or once it has ended (Separation Agreement). Both of you will need to be involved, you’ll need separate lawyers to advise you on it, and those lawyers must sign the agreement with you.

 

Agreeable has crafted this handy guide to give you all the key, relevant information about the Act, covering only the most important aspects and removing as much legal jargon as possible. 

Please note: this guide does not constitute legal advice. If you have detailed questions about your specific situation, contact the team at Agreeable and we will point you in the right direction.

Read on to find out more!

property relationships act

What is usually “relationship property”?

If you are married, in a civil union, or in a 3+ year de facto relationship, the Act states that your “relationship property” must be divided equally on separation or death. 

Many have heard of relationship property, but what is it usually? To translate the Act’s large list from Section 8 into something a bit more handy, the following assets are almost always found to be relationship property:

  • The family home, i.e. where you live together (even if one of the spouses purchased it themselves beforehand!)
  • All vehicles, furniture, appliances, and other assets that have been used for the benefit of the relationship.
  • Bank accounts and share portfolios, that have been used, even slightly, for the benefit of the relationship, regardless of whose name they are under.
  • Kiwisaver/superannuation accounts, credit card & student loan debts, and life insurance policies are usually considered relationship property as well.

Most other assets are likely to be considered the “separate property” of either partner, as defined in section 9 of the Act.

It’s often best to take a “better safe than sorry” approach and consider most of your assets to be relationship property. A certified agreement, such as those offered by Agreeable, lets you both decide what is relationship property and what is separate property.

What is a de facto relationship?

The Act defines a de facto relationship as two people, aged 18 or over, who live together. “Living together”, if it has to be interpreted by the Court, can be defined based on a range of factors. These are set out in section 2D of the Act, and include: the duration, whether a shared home exists, whether a sexual relationship exists, and how finances/assets have been arranged in the relationship.

The general tip from most experts in this area is that if you believe your relationship is close to a de facto relationship, you should treat it as de facto and consider what that means for your assets. Like many things, it is better to be safe than sorry.

Tell me more about this “equal sharing” rule

The equal sharing rule gives the Act an important effect on many Kiwis’ lives. It’s a rule that recognises all contributions to a relationship, not just financial contributions, and protects partners that might not speak up for themselves.

But a 50-50 split doesn’t always make sense or seem fair to certain couples. Therefore, Kiwis are able to make their own decisions and legally formalise them. This is called “contracting out” of the Act, by getting a certified agreement. More in the next section:


Section 21: when you don’t want the Act to apply

The key section for most readers will be section 21, which allows for Kiwi couples (either during the relationship or after) to “contract out” of the Act’s equal sharing rule, and confirm their own decisions with a certified agreement.

Relationship Property Agreement 

Often called a “prenup”, “postnup”, or “contracting out agreement”, this is the version of s21 agreement that you get while still in the relationship. This agreement will typically feature a home or business that one party brought into the relationship, or even just set out that each partner would like their bank accounts, Kiwisavers, and debts to remain their own regardless of what happens in the future.

It’s best to get this early (i.e just before marriage or early in it) before your asset pool and contributions get thoroughly mixed. 

Click here to download our guide to RPAs.

You can also read our article about contracting out agreements (or prenups) here, or MoneyHub’s excellent guide on them here.


Separation Agreements

These work in a similar way, but are for separated couples to make final decisions on the relationship assets, and who gets to move on with what. Often, these agreements set out that the family home will be sold and the proceeds divided, or one party will “buy out” the other party’s share of the home. They will also usually list each party’s sole bank accounts, Kiwisaver, and debts as their own separate property.

Click here to download our guide to SAs.

You can also read our article about mortgage buyouts here, or MoneyHub’s excellent guide to Separation Agreements here.


NOTE: your RPA or SA must be certified to be legally binding

To get your agreement certified (and keep you out of court for good!), on top of the agreement itself, you will need two different lawyers (one for each of you) to:

  • Give you full legal advice on the implications of your agreement
  • Witness your signature
  • Sign the agreement with you

Agreeable offers a full, online certification service where we provide you with two lawyers from our nationwide panel, to give legal advice and sign the agreement with you via video signing. We regularly save Kiwis over $1,000 towards the total cost of the agreement. Download our guides above, or get in touch with our team today to find out more.


 

Other key points to note about the Property (Relationships) Act

 

There are a number of smaller parts & sections of the Act that may be relevant to you. We will list a few of the more common ones here, but if you have a question that isn’t answered here, feel free to get in touch us here at Agreeable. We have a dedicated team that is just an email, phone call, or live message away – we’re happy to help you figure out what you need today.

What if we have property in a trust?

Trusts do not necessarily protect assets from being considered relationship property. This is particularly true for the family home and family chattels (section 10(4)). The Family Court has been known to order compensation from the party with the trust, to the other party, for a number of factors. Trust assets can be included in contracting out or separation agreements to let you decide whose property it is. 

What if our financial positions might be quite different upon separation?

Section 15 of the Act sets out that the Court may order that the party with “significantly” lower income and living standards to the other party may receive more than half of the relationship property. While this protection is in place, enforcing it would require going to Family Court, which can take many months in New Zealand. Instead, getting a certified separation agreement would keep you out of court and save you much of the hassle.

What if our relationship lasts less than three years?

Different rules apply for relationships of a “short duration”, which is less than three years, according to section 14. For short marriages or civil unions, property is generally divided according to the contributions of each to the relationship. De facto relationships of less than three years are unlikely to apply to the Act, unless there is a child in the relationship, or if failing to bring the relationship under the Act would result in serious injustice.

What happens to relationship property if one partner dies?

If one partner dies and you don’t have a contracting out agreement, the surviving partner can choose between (a) their 50-50 entitlement under the Act, and (b) whatever is set out in the deceased partner’s will. If there is also no will, the Administration Act sets out how the estate will be distributed. Note that the surviving partner has priority over beneficiaries of a will.

What about overseas property?

The key is whether the property is “movable” or “immovable” under the Act (section 7). Movable property is anything that isn’t physical land or buildings, such as vehicles, chattels, bank accounts, shares, debts etc. The Act applies to all movable property, in NZ and overseas. Immovable property is all land and buildings. Only immovable property situated in New Zealand, however, comes under the Act and can be divided up either by court or in your own contracting out agreement. To deal with overseas land/buildings, you will need to get an agreement under that country’s laws.


 

Thanks for reading! Here are some of our other helpful articles:

What is a Prenup Agreement?

Separation vs Divorce: What You Should Know 

Five Helpful Tips To Save Time & Money on Certification

 

Separation Agreements and the family home

Separation Agreements and the family home

It goes without saying that separating from your partner is often a difficult experience. There is a lot to figure out, particularly when you have been together for a long time. Central to what needs to be figured out is what you are going to do with the family home – in most cases, a couple’s largest asset.

We have found that the most common way to deal with the family home is for one person to buy the other’s persons share of the home – in other words, for one of you to “buy the other out”. Under NZ’s relationship property laws (found in the Property (Relationships) Act), the family home is usually split 50/50. However, often one person has put more money into the deposit (and didn’t think to get a prenup) or one person has contributed more to the mortgage.

In those situations, the couple might then verbally agree how much one will pay the other for the house. To them, the verbal agreement is simple, easy and they know where they stand. Unfortunately, for them either the bank (or, perhaps, the bank of mum and dad) want the agreement in writing. This is where a separation agreement comes in.

Suddenly, what seemed to be an amicable and simple split can become a rabbit hole of confusion.

Where do we get one? How much will it cost? What is involved? Do I have to see a lawyer? What if they want us to change our agreement?

 

This is where Agreeable comes in.

Agreeable takes the niggle out of getting a separation agreement. We offer a template for parties to make their own written agreement at a fraction of the cost of getting a bespoke agreement from a lawyer. Two independent lawyers can also then be provided to certify the agreement (which makes it legally binding) at a fixed price. Best of all, the entire process can be completed online.

Our goal is to give the written separation agreement a simple and easy feel – just like when the parties verbally agreed. We work with parties to help them understand what is required, how much it will cost and what is involved.

If you have recently separated from your partner (or are about to buy a house with your partner), send us an email and we will help you figure out what your situation requires. Separating is hard enough, it doesn’t need to become a scary legal battle too. We’re here to help make everything a little bit more… agreeable.

Please note: Agreeable does not provide legal advice, but we provide online access to lawyers who do. If you require legal advice, please get in touch with us.

Dividing your assets in a separation

Dividing your assets in a separation

What happens to the bach, the boat and your superannuation?

It is no secret that when married couples and de facto partners separate, each individual is typically entitled to a 50% share of all relationship property under the Property (Relationships) Act.

What you and your partner may not realise is that your superannuation falls within the definition of relationship property. Given the Law Commission has identified that superannuation, second to the house, can be one of your most significant assets it is important to know how it may be divided if you and your partner separate.1

 

So how and why is your ex entitled your superannuation fund?

It may seem counterintuitive that your ex could benefit from a superannuation fund that you, yourself, cannot touch until you reach the age of 65. The good news is that property acquired before your relationship is usually treated as separate and will not form part of the divisible superannuation amount. However, the current law says that any increase to your superannuation during your relationship will be divided equally – irrespective of who contributed the funds.

In the event that you do have to give your ex a percentage of your superannuation the process is not as simple as transferring the money from your superannuation to theirs. The most common arrangement involves handing over another asset that is equal in value, such as a lump sum of cash, the boat, or a greater share in the house.

If your pool of relationship property is not large enough to hand over a lump sum, a loan may be an appropriate alternative.

That said, where neither of the above is an option, the court can make an order directly to the manager of your scheme to release the superannuation funds.

 

The effects of COVID-19

One of the effects of Covid-19 was the plummet of superannuation fund balances, leaving many funds worth far less than their pre-COVID-19 value. In valuing personal property, the court assesses the amount owed at the date of separation. If you and your partner separated pre-COVID-19, this could have a significant impact on the amount of your super that your ex is entitled to. The expected percentage of your superannuation payable to your partner may reflect an amount of money that no longer exists.

 

How we can help

Separations are stressful enough, and going to court can add a costly and timely burden. COVID-19 is expected to lead to a spike in separations, exacerbated by lockdown, forcing family tensions to bubble to the surface.

If you’ve separated and need to take care of your assets, our separation agreements can help. On the other hand, if you’re entering or already in a relationship, a prenup (Relationship Property Agreement (RPA)) can help provide certainty for the future. Asking your partner for an RPA may not be the most romantic gesture in the world but, in all this uncertainty, there has never been a better time to secure your assets.

Ultimately, our law means that you are entitled to make your own decisions about how to divide your assets. Therefore, instead of leaving it to the Act and the courts to split up what is yours, a prenup or separation agreement is an efficient and cost-effective option.

 

Disclaimer: Any information we provide is general information. Please do not rely on the contents of this article as legal advice. Agreeable is not a law firm or a substitute for a lawyer.

1Law Commission Review of the Property (Relationships) Act 1976 (NZLC R143) at 15.43.