Opening a window on separation
Opening a window on separation
Thursday 13 May, 2021
The recent news that Bill and Melinda Gates have decided to separate came as a shock to many people, as the high-profile philanthropic couple have been married for 27 years. However, this reflects a growing trend, both in New Zealand and internationally, towards later-in-life divorce. The stress of the COVID-19 pandemic and associated lockdowns has also put a strain on many relationships, leading to a spike in separations over the past year. The process of ending a relationship varies from state to state in the USA, and the outcome can vary significantly depending on the state of residence. Fortunately, in New Zealand the process is the same regardless of where you reside and is reasonably straightforward.
In New Zealand, when two people decide to end their relationship, they do not have to take any formal steps to make their separation official. However, most couples, particularly if they own property or other assets together, will negotiate a separation agreement which details how their assets and liabilities will be divided.
A separation agreement usually records the date you agreed to separate how you will divide your relationship property, and how you will repay any joint debts (e.g. mortgage).
If the separation agreement covers relationship property, then it must be in writing and signed by both of the parties. In order for the agreement to be legally binding, you both must have independent legal advice (i.e., separate lawyers) on the agreement and your signatures must be witnessed by a lawyer who must certify that they have explained the implications of the agreement to you.
People also often enter into agreements or make arrangements covering how the care of their children will be shared between them.
Ideally, parties will agree on the terms of their separation amicably through negotiation, and many parties use private mediation services to help them reach agreement or negotiate through their lawyers. There are significant advantages to this approach, as it will reduce legal costs and is likely to make future interactions easier, particularly if the parties are parenting children together. However, some separating couples find it difficult to resolve things amicably, as a separation can be a time of heightened stress and intense emotions.
Applying to the Family Court
If the parties cannot agree on when they separated, or only one partner wants to separate, they can seek a Separation Order from the Family Court, which is a legal declaration that the parties have separated and the date of separation. A Separation Order does not cover property or care of children.
If the parties cannot agree on how they will share day-to-day care of the children, they can apply to the Family Court. Generally, they will have to attend a Parenting Through Separation course and mediation to try and help them reach agreement. If they still cannot agree, they can apply to the Family Court for parenting orders. The Family Court will make these orders based on the children’s best interests.
If an agreement cannot be reached about the division of relationship property, an application can be made to the Family Court. The starting point for the court is that relationship property will be divided equally between spouses or de facto partners (if the relationship has lasted longer than 3 years).
Once parties have been separated for two years, they can apply to the Court to dissolve their marriage (divorce) or civil union. They do not need to have divided their relationship property in order to dissolve their marriage.
It appears that the Gates have amicably worked out the details of their separation, a process which can be easier when children are grown up and the parties are financially stable. However, even an amicable separation can still be complex and take time to resolve, with Melinda reportedly starting to consult divorce lawyers in 2019. While no New Zealanders will have relationship property equal to the Gates’ fortune of US$124 billion, seeking legal advice early in the separation process can help the process run more smoothly and result in lower costs in the long run.
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