Divorce laws for expats living in New Zealand
For expatriates to apply for a dissolution of marriage (divorce) in New Zealand, one or both parties must be “domiciled” in New Zealand- that is either having been born in New Zealand and not living in another country indefinitely, or born in another country but now residing in New Zealand indefinitely. An expat working overseas on a long term contract does not disqualify a person from applying for a divorce, provided that the person continues to be domiciled in New Zealand. The marriage does not need to have taken place in New Zealand.
New Zealand is a “no fault” jurisdiction for dissolution, and so the only requirement for a dissolution is that the parties have been separated for two years prior to the application. This requirement is absolute and there are no means to reduce that time.
For expatriates to divorce in New Zealand, an application can be made either by both parties jointly, or by one party. The applications are by way of standard form (which can be found on the New Zealand Ministry of Justice website). They are designed to be completed without the assistance of a lawyer, although parties can have representation if they wish. There is no need to attend Court unless a party specifically wishes to (which is unusual). If the parties apply jointly and there are no errors in the application, the dissolution takes effect one month after the Registrar of the Court approves it. If one party applies, the application must be served on the other party and they are given a period of time to respond (21 days if they are in New Zealand, 30 days if they are in Australia, and 50 days for the rest of the world). Assuming the application is not defended, the Registrar will consider the application at the end of that period and the dissolution will take effect one month after that. If they have elected to appear in Court, the Registrar will assign a date for the matter to be heard in front of a Judge.
If there are minor children (under 16 years of age), then the parties will have to satisfy the court in the application that arrangements have been made for their care, or if not, that there are good reasons why not (for example that parenting matters are progressing through the Family Court). These do not have to be final arrangements, and they do not form part of the dissolution order, but the Family Court has a duty to ensure that the welfare and best interests of children involved in any proceedings brought before it are protected, and so must be assured that they have been considered.
Division of relationship property is a completely separate process to a dissolution of a marriage and can occur at any time after the couple separates. In the case of married couples, it can occur either before or after the dissolution of the marriage, although in most cases it will occur before.
New Zealand relationship property laws apply to legally married couples, couples in a civil union and unmarried (de facto) couples- including those in a same sex relationship. What constitutes a de facto relationship is defined in the legislation.
The New Zealand Courts have jurisdiction to make orders over immovable property in New Zealand and movable property in New Zealand and elsewhere.
If the marriage, civil union or de facto relationship exceeds three years in length, it is presumed that all property defined as “relationship property” is to be divided equally between the parties. This includes the family home and chattels (whenever acquired), any income earned during the relationship, any property obtained during the relationship, or any increase in value of property owed prior to the relationship by one party (separate property) when that increase is attributable to the relationship.
There are exceptions to the equal sharing presumption, but these are fact specific and can be difficult to achieve. These exceptions include compensation for post separation economic disparity due to the relationship and exceptional circumstances that make equal sharing repugnant to justice.
Likewise, debts defined as “relationship debts” are presumed to be equally divisible.
Marriages and civil unions of less than three years, and de facto relationships of less than three years, are treated differently. For a marriage or civil union, the presumption of equal sharing applies, but is more easily displaced. For a de facto relationship, the relationship property legislation does not apply at all unless there is a child of the relationship (which is defined more broadly than a biological child of both parties) or that the parties have made substantial contributions to the relationship, and that failure to make an order would result in serious injustice.
Property matters can be resolved either by way of private agreement between the parties or by way of an application to the Family Court. Due to the time and cost involved in Court proceedings, most matters settle by way of private agreement. In order to be legally binding, these private agreements must meet certain criteria, including that each party has received independent legal advice as to the effects and implications of the agreement and that their signature has been witnessed by a lawyer.
Spousal maintenance can be available depending on the circumstances of the case, on both an interim basis or for a longer term. However, it is not intended that maintenance be paid indefinitely, and it is intended only to assist the disadvantaged party to get “back on their feet” following the separation.
Child Support is governed by way of a set formula assessment through the Inland Revenue Department, with such an assessment being based on the care arrangements for the child and the parties’ respective incomes. Voluntary agreements can be made, unless one of the parties is in receipt of a government benefit.
Issues relating to care of children are completely separate from relationship property.
Both of a child’s biological parents are their legal guardian (except for very limited circumstances in which the biological father may not be). This guardianship is held regardless of the child’s physical care arrangements and the effect is that both parents have equal input into the important decisions for a child such as those relating to education, medical care and religious upbringing. A child living in New Zealand can also only be taken out of New Zealand with the consent of all guardians or court order. Guardianship applies until the child turns 18 years of age.
Other people may be appointed a child’s guardian on application to the Family Court, but this will generally only be done if the child’s parents are unable or unwilling to fulfil the role themselves.
If a child’s guardians do not agree about an important decision concerning the child they can apply to the Family Court for a direction concerning the dispute.
Deciding a child’s care arrangements is also the responsibility of the child’s guardians, but if they cannot agree then the parties can utilise the Family Justice system to assist them to resolve the dispute between them, or failing that have a Judge make a Parenting Order setting out the care arrangements for the child (providing the child is under the age of 16 years).
If the Court is required to make the decision its sole and paramount consideration is the welfare and best interests of the particular child in their particular circumstances. There are some general principles that the Court is required to take into account, but it is largely a factual assessment based on the individual child’s situation.
There are no gender presumptions (relating to either parent or child) in the legislation, and equal shared care arrangements are common.
With thanks to Helen Tyree, Associate at McWilliam Rennie Lawyers for preparing this article on divorce laws for expatriates in New Zealand. Helen can be contacted at:
McWilliam Rennie Lawyers
Level 3, 15 Brandon Street
PO Box 24 280, Wellington, 6142
P (04) 924 2460 F (04) 914 4330