Page updated on: Thursday March 20, 2008
Dissolution is when a marriage or civil union is formally ended by a Family Court order. It’s more commonly called “divorce”. Dissolution in New Zealand is granted on a “no fault” basis. This means you don’t have to show that one of you has been at “fault” in some way in order to divorce.
To get a dissolution order, all you must prove to the Family Court is that your marriage or civil union has irreconcilably broken down by showing that you and your ex-partner have been living apart for the last two years.
If you have children, however, you must also satisfy the Court that you’ve made arrangements for their care (including day-to-day care and maintenance), or that there’s a good reason why you haven’t made any arrangements.
You can prove you’ve been apart for two years by a separation agreement (either spoken or written), a separation order, an affidavit (a sworn statement) from either or both of you that you’ve lived apart for the necessary amount of time, or independent evidence from someone who knows you.
If you’ve lived together for a period during those two years, so long as this was not more than three months in total you can still satisfy the two-year separation requirement.
You and your ex-partner can apply for dissolution order together, or one of you can apply alone. It is relatively simple and you usually don’t need a lawyer. When you apply, at least one of you must be living in New Zealand.
You must file the application in the Family Court. You can get copies of the forms from the Family Court, or download them from the Family Court website at www.courts.govt.nz/family/forms/list/default.asp?inline=family-proceedings.asp. There is a filing fee when lodging the application with the Court.
If you hire a lawyer, you’ll also have to pay your lawyer’s fees. You can not get legal aid for dissolution.
If you and your ex-partner both agree to dissolve your marriage or civil union, you can make a “joint” application. The application and supporting evidence are signed by both parties to the application and then filed at the Family Court. Joint applications are simpler and faster, and can usually be dealt with by the Family Court Registrar without a hearing and without you having to go to Court
A single application is when you apply for dissolution on your own usually because your ex-partner doesn’t agree to the dissolution, or because you don’t know where they are.
When applying alone for a dissolution order, you are called the “applicant” and your ex-partner is called the “respondent”. You must complete and file a series of documents with the Family Court along with the original marriage or civil union certificate, or a certified copy and any separation agreement or separation order.
Once you’ve filed the documents with the Court, you must arrange for copies of documents to be “served” on your ex-partner. This means the documents must be given to them personally by someone other than the applicant. The documents cannot be posted to your ex-partner, even if they’re living overseas. Preferably get someone who knows your ex-partner to do this or a private investigator, a process server, or a Court bailiff. You’ll have to pay the cost of this yourself.
The person who serves the documents must complete an Affidavit of Service (Form G8), swearing that they either personally knew the respondent or that the respondent was clearly identified by them when they were served the documents.
If you don’t know where your ex-partner is, you’ll need to file with the Family Court an “Application for Substituted Service” or an “Application to Dispense with Service”. You’ll probably need a lawyer to help you do this.
The Court will then consider whether serving your ex-partner in some other way will be enough – for example, giving the application to one of their family or advertising it in a local newspaper.
There will only be a Court hearing if your ex-partner asks to appear in Court before a Judge or decides to oppose (“defend”) your application. Otherwise, your application will be dealt with by the Family Court Registrar, rather than a Judge, and without a Court hearing.
If one person thinks the marriage or civil union shouldn’t be dissolved, they can ask to appear before a Family Court Judge by filing a Request for Appearance (FP 19), or oppose the application by filing a Notice of Defence (G 12).
They must do this within 21 days after being served with the application for dissolution and would need to show that the couple haven’t been separated for the necessary two years. It’s very difficult to challenge the application on any other grounds.
Orders made by the Court Registrar
The Family Court Registrar can make a dissolution order if the couple has applied jointly and consented to it being made in their absence, or one person has applied alone, and the other person agrees but doesn’t want to appear in Court before a Judge.
It takes effect one month later, unless circumstances change before the month is up and one person asks for a Court hearing.
If one person wants to oppose the other’s single application for a dissolution order, there will be a hearing before a Family Court Judge. If the Judge makes a dissolution order after the hearing, the order takes effect one month after it is made.
Special rules apply if one person appeals the order or if either person dies.
If one or both of you want an order immediately (for instance, if one of you is due to remarry), you’ll need to ask for an undefended hearing where both of you appear in front of a Judge. This isn’t a full Court hearing, and you appear as a formality only. When the Judge makes the dissolution order, the order takes effect immediately.
Neither person can marry or enter a civil union until their dissolution order is final.
More information on divorce can be found at www.lawaccess.lsa.govt.nz/Lrm_V2.aspx?BookId=67&ChapterId=3