If you’re thinking of separating, what are your options?
1. Continue the relationship
- Try to work out your differences with your spouse
- Go to counselling together – visit a professional or obtain counselling through your church
- Sometimes it can also help to have counselling on your own to clarify what you want.
2. Decide to separate
You and your spouse will need to reach agreement on the details of your separation, such as division of your relationship property, where each party will live, how each party will support themselves in the short term and decisions around parenting.
There are three options for reaching your decisions
- Verbal agreement
- Written agreement – this might be as simple as making a written account of the decisions you have made together. Sometimes people engage a counsellor or church leader to assist with this process. It might be an agreement reached after negotiations through your lawyers. Parenting agreements are included in this category.
- A decision is made by the court.
We recommend you have a meeting with your lawyer before you start negotiating, to understand your rights and options. If you and your spouse maintain a good relationship and work together on an agreement, this will be the fastest and most cost effective and option for you.
Our How Does the Process Work section explains further about reaching an agreement and decisions made by the Court for relationship property. See our Child Custody section for more information on reaching agreements on childcare.
Should one of us move out?
We recommend that couples remain living together if possible while they work out an agreement. Once couples stop living together, successful communication can become hard to maintain. There are also additional financial and emotional issues that arise, which can complicate negotiations. It is often the case that once couples are living separately, communication is mainly carried out through their lawyers. You are entitled to stay in your home, unless there have been issues with family violence. Click here for more information.
Here are some situations we see quite often, together with the options available
Living together after separation
A couple are thinking about separating. They are still getting on well and would like to manage their separation in a way that is best for their two pre-school children. One partner works full time while the other is having a career break and looking after the children. What are their options?
- Stay in the house together but live more separately e.g. in separate bedrooms.
- Bird-nesting – this is where the children live in the home full time but the parents take turns at living in the home looking after the children. See our Bird nesting article for further information
- The working partner might move into their own permanent accommodation but continue to pay some or all of the costs to run the household. The children could visit them in their new home.
Any type of separation can be for a trial period. Some of our clients have used time living apart from their partner to successfully work through issues and get back together.
Disagreements about care of children
A couple are separating and one party moves out of the family home. The relationship is fairly amicable and they initially decide to negotiate together regarding the relationship property and access to children, without involving lawyers. However, they are unable to reach agreement on key issues regarding childcare. What are their options?
- Counselling through the Family Court
- Enrol in the free Parenting through separation course offered by the Ministry of Justice.
- Use the Family Dispute Resolution mediation service (work with an independent professional to agree on how they will care for their children).
- Engage lawyers and negotiate through their lawyers.
- A mediation attended by the parties, their lawyers and an independent mediator.
- Progress through the Family Court system which provides opportunities to reach agreement or if parties are unable to do this, the matter is decided on by a judge at a defended hearing.
See our Child custody section for further information.
Disagreements about relationship property
One spouse has had an affair and moved out of the house. That partner is the owner and operator of a successful business. Their spouse who is still living in the home earns considerably less, and is demanding the immediate sale of the business and relationship property so they can be paid their share. In addition, they have asked for a significant sum to be paid to them on a weekly basis. The relationship has completely broken down. Constructive discussions are no longer possible and they would like to cut ties immediately. What are their options?
- Reach agreement negotiating via their lawyers. They should consider different options for the future ownership of the business. Our Entrepreneur divorce section discusses some of these.
- File proceedings to the Family Court where a judge will make the final decision. This will cost more and take a lot longer.
- The partner who earns less will likely be entitled to regular financial support (spousal maintenance) so that their standard of living is maintained. To achieve an immediate break, they might consider one partner having a larger share of the relationship property (e.g. a 70/30 split), in exchange for the other party having full ownership of the business and no further obligations regarding spousal maintenance.
Our section How Does the Process Work explains how couples might reach an agreement themselves and the process if they file proceedings through the Family Court.
A couple lives together with their three children. Most of the time everything is fine but a few instances of family violence has prompted one partner to ask for a separation. The offending partner refused to leave and was again violent. Their spouse no longer feels comfortable leaving them alone with the children. They are concerned that any police or legal action will enrage them further. What are their options?
- Try to work on the issues themselves, with help from a family member or other trusted person who knows the couple. Seek help from a counsellor or groups who deal with any relevant issues, such as alcoholism or anger management.
- One partner could move out on a temporary basis. This provides an opportunity for everyone to calm down and time to work through issues.
- Have the offending partner removed from the home. To do this, a complaint needs to be made to the police. The accused is then taken into custody and the Family Court can issue a Protection Order, which will make it a criminal offence for the accused to contact the family in any way.
The Court has a few options for protecting families from violence and can issue an Order to say who can / cannot live in and visit your home. Further information and options are discussed on the Ministry of Justice website.
“The information posted on this website is prepared for a general audience, without investigation into the facts of any particular case. This information is no substitute for legal advice and does not create a lawyer-client relationship; you are advised to consult with a lawyer on any legal issue.”