Who wins in a marital separation in New Zealand? A lawyer can help you
Marital separation is a painful and difficult time for all parties. Many times one party will be looking for revenge for some wrongdoing, while others will be looking for reconciliation. Many people would advise couples to seek counseling to help iron out some major difficulties but often there is no emotional way forward. In those cases, and they are increasing, the only option is to apply for a formal separation. This is when you need to seek advice from an experienced divorce lawyer who can help you understand your rights, obligations and to draw up any legal documentation that will be needed. The aim of this article is to highlight a few of the issue but it is not proper legal advice. For that you must see a currently practicing lawyer.
Some basics about marital separation in NZ
Couple arguing – image artur84
Most people still use the term “divorce” when talking about a separation but he formal term is dissolution of a relationship. The laws and regulations that apply to a divorce are the same for both parties in all relationships. This means a husband and wife are treated equally and can expect an equal share of all relationship property.
Men and women in defacto relationships will also have the same rights and now, Civil Union relationships between partners of the same gender are covered by those same laws.
Money – the big issue for many
There are many stories from years ago when a man in a divorce was left with few financial resources after giving the house, savings and financial maintenance to the ex-wife. Conversely, there are just as many situations where the woman would be given a pittance with which to raise any children after a divorce. Neither of those extremes occur in modern New Zealand after a separation.
Both sides have an equal right to all jointly owned real estate, savings, property and any other assets including businesses. Two types of problem can arise around the distribution of the finances.
The first is when one partner feels they have contributed more financially than the other. However hard one party might try to demonstrate this, they will not succeed. The law is absolutely clear on this matter.
The second common problem comes to the valuation of those assets. Of course each party will want to value them to their advantage. If the two parties cannot agree, the only fair way is to hire a professional valuation expert in that field. This will cost money but it will be an independently agreed outcome.
Another factor is that of Family Trusts. Many people have a family trust that holds their assets such as investment properties, businesses and savings. In most cases, any asset that is held and therefore owned by a Family Trust must be included in the total relationship property. This confounds some people but again the law is strong in this regard. Many Trusts have been declared void because they were set-up with the intent to hide or protect assets from a spousal partner.
In all of these situations your lawyer will be able to give you good advice and work with you to negotiate with the other party’s lawyer so that you are treated according to the law
After agreeing the relationship property
Once both parties, with advice from their legal people, have agreed on valuations of assets, then those assets have to be transferred to the new owner or sold on the open market. Commonly if one party cannot afford to take on the mortgage of the home, then it will have to be sold. Alternatively, they may be able to buy their partner’s share. In both of these situations, the ownership documents, the Title and mortgage Deeds will have to be drawn up and processed by the lawyers.
Who has care of any children?
Child-care is another contentious issue especially for mothers. Here again the laws are relatively clear about custody of the children. One parent is usually the custodial parent although both parents are in fact guardians.
The next issue is that of access or time with the children. Again there are plenty of stories of one partner being denied access to their children by the custodial parent. This not good for the children and so the Family Court has powers to decide on a reasonable access for the non-custodial parent.
Get legal advice – image Stuart Miles
Summing up
Separation in New Zealand like anywhere else is a painful time. However unlike many other countries, the marital separation laws are clear and non-negotiable. This does not mean you do not need legal advice for a separation. With the ownership of real estate, properties, assets and of course ensuring the children are taken care of correctly, there are still some complicated legal issues to resolve. And of course there are various legal documents such as the Separation Agreement that have to be drawn up and finalised.
So if you are in the unfortunate position of going through a marital separation be sure to contact a lawyer as soon as you can.
North Shore Lawyer 