When the mar­riage comes to an end

Kapi-Mana News - - OPINION -

Fol­low­ing the sep­a­ra­tion of a mar­ried cou­ple ( or civil union part­ners), the prover­bial knot can­not be un­tied un­til they have been liv­ing apart for at least two years.

You can­not ap­ply for a di­vorce – known as a dis­so­lu­tion of mar­riage – in New Zealand un­til that two-year pe­riod has passed.

To ap­ply in New Zealand, one of the par­ties to the re­la­tion­ship must live in New Zealand.

That means that for at least one of the par­ties, New Zealand must be their or­di­nary place of res­i­dence or their place of ori­gin.

It is pos­si­ble to be liv­ing in an­other coun­try and still be ‘‘domi­ciled’’ in New Zealand – for ex­am­ple, if some­one was work­ing over­seas for a few years, but in­tended to re­turn to New Zealand to live.

Once a cou­ple have been liv­ing apart for two years, to dis­solve their mar­riage they must file an ap­pli­ca­tion with the Fam­ily Court.

That ap­pli­ca­tion can be filed jointly (they both sign the nec­es­sary documents) or one party can ap­ply (and the other per­son needs to be per­son­ally served with a copy of the documents).

An ap­pli­ca­tion to the Fam­ily Court re­quires three documents to be filed:

1. An ap­pli­ca­tion form.

2. An af­fi­davit – a doc­u­ment the per­son sign­ing must con­firm on oath is true and cor­rect. This can be signed in front of a Jus­tice of the Peace, a lawyer or reg­is­trar at the court).

The orig­i­nal mar­riage/ civil union cer­tifi­cate or a cer­ti­fied true copy must be at­tached to the af­fi­davit.

3. An in­for­ma­tion sheet, set­ting out con­tact de­tails and in­for­ma­tion about both par­ties.

A fee must also be paid to the Fam­ily Court when the ap­pli­ca­tion is filed. That fee is cur­rently $211.50.

For a dis­so­lu­tion ap­pli­ca­tion, it is pos­si­ble to have been ‘‘liv­ing apart’’ while still liv­ing in the same house. If the par­ties can show that their re­la­tion­ship was at an end, per­haps liv­ing in sep­a­rate bed­rooms, they could still be held to be liv­ing apart.

Even though a dis­so­lu­tion ap­pli­ca­tion can­not be made for at least two years, a sep­a­rated cou­ple can still di­vide their re­la­tion­ship property and re­solve mat­ters such as fi­nan­cial sup­port be­tween them well be­fore that two-year pe­riod.

To have a bind­ing agree­ment about property mat­ters, both par­ties will need to ob­tain in­de­pen­dent le­gal ad­vice about the di­vi­sion of their property.

Any agree­ment a cou­ple may reach re­gard­ing the di­vi­sion of their property will not be bind­ing un­less they com­ply with the fol­low­ing for­mal re­quire­ments:

1. The agree­ment reached is in writ­ing and signed by both par­ties.

2. Each party’s sig­na­ture is wit­nessed by a lawyer.

3. The same lawyer who wit­nesses the sig­na­ture must pro- vide that party with in­de­pen­dent le­gal ad­vice as to the ef­fects and im­pli­ca­tions of the agree­ment.

4. That lawyer must cer­tify, by sign­ing a cer­tifi­cate on the agree­ment, that they have pro­vided that in­de­pen­dent ad­vice.

These re­quire­ments mean that each party must have a sep­a­rate lawyer.

Part of the process of di­vid­ing re­la­tion­ship property will in­volve each party dis­clos­ing to the other all their as­sets and debts, whether they con­sider those to be joint as­sets/debts or sep­a­rate.

It is a good idea for people sep­a­rat­ing to get early ad­vice so that they are aware of the process and what their rights/obli­ga­tions might be.

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