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Need for Lawyer if Divorcing Amicably

Dear Metro Law

My husband and I separated earlier this year. We are still amicable but we are eager to put a line under our relationship and start afresh. What is the process in regards to legally divorcing and how necessary is a lawyer in regards to dividing up the assets of our relationship?  Like I said, we are still on good terms and would like to keep the legal side of proceedings as simple as possible.

Thanks Clare

Hi Clare,

Thanks for your email.

Under New Zealand Family Law there is intentional separation between the different aspects of the break-up of a relationship.  The end of the marriage relationship is largely separate from relationship property issues and both are separate from issues of custody, access and child support.

What was once called divorce is now called a dissolution of marriage.  Either party can make an application to the Family Court for the dissolution of the marriage once you have been separated and living apart for a period of two years.  It is also quite common for the parties to make a joint application and in some ways this is easier as you don’t need to get the application formally served on the other party.

Turning to the division of relationship property I would strongly recommend discussing this with a lawyer.  There are a number of good reasons to have this discussion.

If there are minimal assets to be divided there may be less reason to do a formal separation agreement and if you can reach agreement without going to court it is true that you may both save the expense of a lawyer.  But, often people have an oversimplified or plainly wrong understanding of the law in this area and it is worth getting at least some professional advice for peace of mind if nothing else.

In general most people understand that once you have been living with someone either as a de facto or married for more than 3 years that there is a presumption that the relationship assets are generally to be shared equally.  People are less familiar with exactly when that relationship is deemed to have begun, what counts as relationship property and in what circumstances a court might order an unequal division of the relationship property.

If you do decide to have a formal Separation Agreement under the Property (Relationships) Act 1976 then both parties need to get independent legal advice on the agreement for the agreement to be binding.  I have seen more than one occasion where after an informal division of assets a former partner has come back for another bite at the cherry when they had squandered the amount they received.

Do you have a similar problem that needs legal adivce?

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