Separation

A separation agreement or a separation order is not necessary for you to separate. However they may be useful to record the fact that you’ve separated and the date on which this happened. A separation order also has the effect of excluding the separated spouse from any property they might ordinarily inherit should their spouse die intestate (ie without leaving a will).

In the case of married and civil union couples, if only one of them wants to separate the other may apply to the Family Court for a separation order

Separation Agreements

A separation agreement is a spoken or written agreement made by a married, civil union or de facto couple when they’ve decided to live apart. It can be registered in the Family Court as a “consent order” and if anything goes wrong, it can be enforced like a Court order. It can deal with issues such as – care of your children, agreement for maintenance (financial support) for one partner or child support agreements.

For married and civil union couples, the agreement can also be a useful record if you later apply for a dissolution of your marriage or civil union (divorce).

It will be valid even if it’s not in writing. But it’s better to put it in writing, and to date it and have both of you sign it.

However if the agreement also deals with how you’ll divide your property, you must follow special rules–

it must be in writing and signed by both of you
each of you must have had independent advice from a lawyer before you signed
the signature of each partner must be witnessed by a lawyer, who must certify that they explained the effect and implications of the agreement to that partner.

Separations Orders

If a married or civil union couple can't agree to separate then it may be necessary to obtain a separation order. The Family Court can make a separation order for a married or civil union couple if the Judge is satisfied there’s a “state of disharmony” between them. These orders are often made in conjunction with an application for an occupation order that gives one of the partners exclusive occupation of the family home for a limited period. An occupation order will be appropriate where for example, the applicant has responsibility for the day to day care of children of the relationship and needs time to organise alternative accomodation for the family.

When one partner applies to the Family Court for a separation order, the couple will usually be referred to counselling. However this will not happen if one partner has been violent, the couple has already been to counselling in the past year, or the Court thinks counselling won’t be useful.
A separation order does not end the marriage or civil union and a further application to the court will be needed to do this as discussed below.

When a de facto relationship ends no formal legal steps are needed. However, de facto partners may need to use the law to resolve other issues around their relationship, such as care arrangements for the children or how relationship property will be divided.

More information on separation can be found at www.lawaccess.lsa.govt.nz/Lrm_V2.aspx?BookId=67&ChapterId=2