Separation Agreements

What is a separation agreement?

 

A road map to a new life

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Before two people can divorce, they have to be separated for at least two years. They can be separated under one roof essentially still living together but in all other aspects, they are not together. The start of the separation typically involves separating jointly owned property and having individual bank accounts.

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Often separating couples will try and negotiate with each other regarding property ownership, time, and care of the children as well as drafting an agreement through lawyers regarding the details of such an agreement. This initial agreement is the separation agreement.

It is important to note that in New Zealand the Courts primarily care about the children first. The agreement should specify who is getting the children at what times and for what purpose. It is often the person who has care of the children for the majority of the time that will ultimately end up with a larger share of the relationship property. 

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In New Zealand, a separation agreement is a legally binding contract between two people who have decided to end their relationship, whether they are married, in a civil union, or in a de facto relationship. The agreement typically outlines how they will divide their property, debts, and responsibilities after separation.

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Key Aspects of a Separation Agreement in NZ

1. Property Division – How assets, debts, and property will be split.

2. Child Care Arrangements – Agreements on custody, access, and child support.

3. Spousal Maintenance – Whether one partner will provide financial support to the other.

4. Any Other Financial Matters – Covering things like shared businesses, investments, or trusts.

Legal Requirements for a Valid Agreement

For a separation agreement to be legally enforceable in NZ, it must:

• Be in writing and signed by both parties.

• Include independent legal advice for both parties (each must have their own lawyer).

• Have lawyers sign a certificate confirming they provided legal advice.

• Be entered into voluntarily, without coercion.

Why Get a Separation Agreement?

• It provides clarity and certainty about financial and parental responsibilities.

• It can prevent disputes in the future.

• It is legally binding, which means the courts can enforce it if necessary.

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While separation is one of life's most stressful events a separation agreement can provide some sort of road map to the process. It allows a plan in which both parties can plan for their future. These agreements should be sought out at the earliest opportunity and provide evidence as to the time when they separated. This can become important when applying time periods for marriages of short duration or property settlements. Shorter marriages generally mean that the person who brought more assets into the relationship may have a greater opportunity to keep them.

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To be considered separated, you must demonstrate that you are living independently despite sharing the same home. This can include:

• Sleeping in separate rooms

• No longer sharing meals or household responsibilities

• Not socializing as a couple

• Informing family and friends that you are separated

If you plan to apply for a divorce (dissolution of marriage), you must have been separated for at least two years. You may need to provide evidence that you have been living separate lives even while in the same house.

 

For further information please contact me on pd@blomfieldlegal.co.nz