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.
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.
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.
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