1) Be married or in a civil union
De facto partners cannot get divorced. You need to be either married or in a civil union partnership.
2) Consider counselling and other methods of reconciliation
Before committing yourself to separation and divorce consider trying to work out your differences.
Attending separate and/or joint relationship counselling can help you work through your difficulties and clarify what you want.
Then, if you decide you still want to separate you can be happy that you explored all the options.
Counselling can also help you find clarity and closure which will prepare you for the separation and put you in a better frame of mind to deal with the practicalities of separation and divorce.
3) Talk to your children about the separation
Once it becomes apparent your separation is to be permanent it is important to discuss and agree on an approach to the care of your children going forward and how to tell them about the separation/divorce.
You can get ideas on what to tell your children and how best to approach this here.
4) Be separated for 2 years
Before you can get a divorce, or what the legal industry calls a “dissolution”, you must have been separated for at least two years.
If you want to be clear about when you separated you can enter into a separation agreement or apply to the Family Court for a separation order.
To apply for a separation order you will need to fill in and deliver to the Family Court an application form, affidavit and information sheet. These forms can be found on www.justice.govt.nz and can be completed by yourself or with the help of your lawyer.
If your ex-spouse/partner does not agree to get a separation order you will need to go through the same process but your ex-spouse/partner will be given time, usually 21 days unless they live outside of New Zealand, to decide whether they want to defend the application.
If your ex-spouse/partner decides to defend the application you will need to attend a Family Court hearing where a Judge will hear from both of you before deciding whether to make and order.
If your ex-spouse/partner does not file a defence a Judge will consider your application and decide whether or not to make an order.
5) Apply for divorce
You can apply for a divorce whether or not your ex-spouse/partner agrees.
In your application you will need proof that you have been separated for 2 years. This can include:
- A separation agreement.
- A separation order.
- Other evidence that shows you are separated.
- A declaration that you have lived apart for the required amount of time.
If your ex-spouse/partner agrees to a divorce you will need to file a joint application together. You can then choose to either appear in the Family Court to give your evidence or you can give your evidence via the written affidavit provided for in the joint application form.
If you file an affidavit you do not need to appear in the Family Court but you will need to sign the affidavit in front of a court registrar, justice of the peace or solicitor.
Once you have completed the joint application form you will need to deliver and file this to the Family Court.
If your ex-spouse/partner does not agree to the dissolution you will need to complete a one-party application. Your application needs to include an original or certified copy of your marriage or civil union certificate and proof that you have been separated for two years.
Once you have completed your application it needs to be filed in the Family Court.
The Court will give you a copy of the documents which then need to be served on your ex-spouse/partner. You cannot personally serve the documents and will need to arrange service through the Court, a mutual friend or family member or by using a professional process server.
It is wise to obtain proof of service which can be in the form of an affidavit of service. The person who served the document can go to the Family Court to get assistance in completing an affidavit.
If you do not know where your ex-spouse/partner is living you can apply for substituted service. This allows you to serve the documents via another method such as email or on a family member.
Once the one-party application has been filed and served your ex-spouse/partner will have time, usually 21 days unless they live outside of New Zealand, to decide whether they are going to challenge/defend your application.
As with separation orders if your ex-spouse/partner decides to defend the application then you will need to attend a Family Court hearing where a Judge will hear both sides and decide whether to make and order.
If no defence is filed then the Family Court will consider the application and decide whether or not to make an order.
If a dissolution order is made it will become final 1 month after the order and a copy will be sent to you.
In both circumstances, whether or not your ex-spouse/partner agrees to the divorce, a filing fee of $211.50 needs to be paid when you file the joint or one-party application in the Family Court.