Separation issues

by Maretta Twentyman & Debbie Dunbar - Morrison Kent

Separation is often an extremely challenging experience, where you have to balance both emotional and legal issues. Each relationship and separation is different, and there is no ‘one size fits all’ approach to resolving these matters. This article gives an overview of some of the big issues that can arise in the context of a separation.
 

Children 

Changes have been made to the Family Court process in recent years which deal with how people resolve parenting and guardianship issues. These changes impact on when you can make an application to the Court, and whether you are entitled to have a lawyer represent you in proceedings. This will depend on whether there are any issues of urgency, violence or child vulnerability, and which stage the proceedings are at. However there is no restriction on people seeking background legal advice or assistance at any stage, and it is important that you are aware of your rights and options so that you can make the best decisions for your children.

Arrangements need to be made about where children will live and who will care for them, i.e. day-to-day care and contact (previously known as custody and access). The law focuses on making arrangements that best support a child’s welfare and best interests, and there are a number of principles that should be taken into account when considering this. 

There are no prescribed care arrangements for children of any age, and it is not presumed that 50/50 shared care is always appropriate, or that a child should be placed in the day-to-day care of a particular person because of their gender.

We can discuss with you the various options for the care of your children, and help you decide how to approach discussions about this and record any decisions made. It may be appropriate for a parenting agreement or plan to be signed, or for an application for a parenting order to be made to the Family Court. 

Irrespective of the care arrangements, if you are a legal guardian of a child then you generally have equal rights to make important decisions for and with the child. This should be done in consultation with all other guardians. Guardianship decisions include where a child should live or go to school, any travel or relocation within New Zealand or overseas, any changes to their name and so forth. Depending on the circumstances, urgent action can be taken to prevent unilateral guardianship decisions being made – for example, an order preventing removal can be sought if there is evidence that someone is about to take a child out of New Zealand without the consent of all guardians.

Property 

It is important for people to understand their legal rights and entitlements in respect of property matters, and obtain some advice about the best way to achieve a fair, and legally binding, division.

The general rule is that once you have been in a de facto relationship, marriage or civil union for three years or more, all of the relationship property is divided equally. However there are exceptions to this, and the relationship property laws can also apply to relationships of less than three years. There are limited circumstances in which relationship property can be divided unequally. This includes where one party has been economically disadvantaged as a result of the division of functions within the relationship (this is known as ‘economic disparity’), or when it would result in serious injustice.

This area is particularly complex, and questions often arise as to whether a relationship would be considered ‘de facto’, whether property falls into the relationship property pool or is kept separate, how and when to value assets, and how to deal with trusts, overseas property and debt. The answers to these questions will depend on the particular facts of the case.

We are expert family lawyers who can help address these matters with you, and provide practical advice on how to reach a settlement that is in line with your legal entitlement. There are formal requirements for an agreement to be legally binding, and time limits for applying to the Court to resolve relationship property matters if an agreement cannot be reached. For these reasons, seeking early legal advice will leave you best placed to protect your interests.
  

Maintenance

Spousal maintenance is ongoing financial support after the breakdown of a de facto relationship, marriage or civil union, and is separate to child support.
Obligations or rights to spousal maintenance will depend on the financial circumstances of each party, and can arise even if the relationship lasted less than three years and there are no children. Depending on the circumstances, it can be appropriate to make an urgent application to the Family Court for interim spousal maintenance.

At Morrison Kent we are committed to working with you to achieve a positive resolution. We always try to settle matters amicably and outside of the Court process, but are highly experienced litigators who can advise and assist with Court proceedings if that is necessary.

If you would like any further information or advice please contact either of the article authors: Maretta Twentyman or Debbie Dunbar, or the Morrison Kent Wellington office (04) 472-0020. 


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