Q & A: Separation and Divorce
Separation Agreement
Q: My husband and I are separated. We have been able to reach agreement (verbally) between ourselves regarding division of all property. Do we need to record this somehow for the agreement to be legally binding?
A: Section 21F of the Property (Relationships) Act 1976 (“Act”) sets out a list of requirements with which an agreement must comply in order for it to be valid under the Act. We would be happy to discuss these requirements with you further and prepare an agreement on the basis of the agreement reached between you and your husband, bearing in mind that your husband will need to obtain independent legal advice from another lawyer. If this is something that you would like to discuss further, please contact our office to make an appointment.
Marriage of Short Duration
Q. I recently married by husband about 2 years ago. For both of us it was our second marriage, and we both have adult children from our previous relationships. Now things seem very shaky and its looking like we are separating. I have been through separation and divorce once but that was a long time ago and this is very different. We both had property prior to the marriage and we also bought a house together, although I paid a lot more in terms of the deposit. I am not sure what the rules are when we have had such a short marriage, can you assist?
A. There certainly can be special rules regarding relationship property division when the marriage is one of your length. It will also depend on when your relationship started. If the relationship is less than 3 years, it is one of “short duration” and some property is divided with different considerations. This can be an uncertain area – please call for an appointment to discuss.
Spousal Maintenance
Q. My marriage has fallen apart and my husband has moved out of our family home. I have stayed behind with the children. I can only work part-time and don’t have enough money to pay the mortgage and outgoings on the home. Can I get support from my husband?
A. You may be able to apply to the Family Court for spousal maintenance (now known as domestic maintenance), which is money payable by one spouse to meet the other’s reasonable needs. Parties are only entitled to maintenance in certain limited circumstances. Call us to discuss your situation.
Paternity Order
Q. I am a solo mother on the Domestic Purposes Benefit. The father of my child has refused to sign the birth certificate, and WINZ has reduced my benefit until I can provide proof of who the father is. Can you help me?
A. We can apply on your behalf for a paternity order, and legal aid is available for paternity proceedings. Contact us on (09) 263 6953 to make an appointment.
Order Preventing Removal of child from New Zealand
Q: I have been served with an on notice application for a parenting order and an order preventing the removal of the child from New Zealand. This has taken me completely by surprise and I do not know what to do. A lot of what my ex-partner says is a complete lie.
A: I can appreciate what a surprise it must have been, as well as how difficult it is to read an affidavit you do not agree with. Please call our office to make an appointment with one of our family lawyers. We can discuss with you what the applications mean and what the process is going forward – 09 263 6953.
Problems with Court order
Q: I have day-to-day care of my three children and my ex-partner has supervised contact every fortnight, as well as in their school holidays. A Court order has been in place for the past 5 years. The reason for the supervision is that my ex-husband is an alcoholic and has been violent in the past. Everything has been going well until recently. The person who usually supervises contact has now gone on a 3 month holiday. My children also say that their Dad has been drunk the last few times that they have visited.
A: Thank you for your email. Are you on good speaking terms with your ex-husband? Have you considered the possibility of a different supervisor in the meantime? The Family Court encourages parents as much as possible to resolve these issues between themselves if they can. The Family Court also offers free counselling which might help you to resolve these problems and discuss your ex-partner’s drinking as well.
Worried about my divorce
Q: I am devastated. My wife is divorcing me. We have barely been married for two years and have a son together. I have a house and assets such as 8 cars. I owned all but one of these cars before we got married. I am worrying about losing them all in the process. I do not know what to do.
A: I appreciate your worry and concern. Please contact our office on (09) 263 6953 to arrange a time to come into the office. One of our family lawyers will be able to discuss all these issues with you, explain what the law is and what the options are going forward
Sale of House Proceeds
Q: How do I legally recognise the agreement my ex-wife and I have made that I will get 70% of the proceeds from selling our house and she will get 30%?
A: The Property (Relationships) Act 1976 provides that in most cases when parties separate/divorce each will receive an equal share of the relationship property. You must ensure any contract you enter to record the agreement for dividing relationship property meets the requirements of section 21F of the Property (Relationships) Act 1976; otherwise the contract might not be legally enforceable.
Divorce
Q: I want to get a divorce.
A: When clients say they want a divorce, they are sometimes referring to division of relationship property and at other times dissolution of marriage. These are two separate things. If you want to dissolve your marriage, you can make an application two years after you have been separated and you do not need to get a separation order. However, if you require assistance of division of relationship property or care arrangements of children, please do come and see us we would be happy to help.
Separation / Divorce
Q. I need the help of a divorce and separation lawyer. I live in New Zealand with my wife and children, but I’m currently working overseas and won’t be back in the country for several months. My wife has sent me an email saying that she’s been unhappy with our marriage for quite some time, and wants to stop me from returning to our family home. Can you help me?
A. We specialise in these matters. Because you are based overseas, it would be best if you emailed me at jeremy@jeremysutton.co.nz . I also have Skype voice/video conferencing capabilities to save on long distance communication charges.
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