Parenting after separation: what to do if we can’t agree on the holidays?

There is a lot to think about when deciding whether to live with a new partner. Is this the right time for us, whose home do we move into, how will the kids feel, and which furniture will we keep? One of the most important things to consider is the legal implications. If you decide to move in together, you are beginning a de facto relationship. What is a de facto relationship? A de facto relationship exists where two people aged 18 or older (and not married or in a civil union) are “living together as a couple”. Knowing whether you are in a de facto relationship is not always black and white. It depends on all of the circumstances. For example, you might spend some nights a week together and some apart with your own children. The relationship could be \"long distance\" for work purposes. Factors that could indicate you have become de facto include: Duration of the relationship Nature/extent of common residence Whether there is a sexual relationship Degree of financial dependence/interdependence and any arrangements for financial support Ownership, use and acquisition of property e.g. purchasing assets together Mutual commitment to a shared life Care/support of children Performance of household duties Reputation and public aspects of the relationship What happens after 3 years? In New Zealand, you do not need to be married to trigger an entitlement to equal sharing, simply living together as partners. When you have been in a de facto relationship for longer than 3 years, there is a presumption that all relationship property will be divided equally if you separate. This is significant because relationship property includes but is not limited to the following: The family home (regardless of who purchased it, who contributed what to the purchase or whose name is on the title); Family chattels (objects such as furniture, appliances, cars etc); All property owned jointly; All wages and income acquired during the relationship; Any property used for your joint benefit; and Any property that is intermingled with relationship property. (For more clarification as to what relationship property includes, see this article: What is Relationship Property & how is it divided). What if we’ve been in a de facto relationship for less than 3 years? If you separate prior to living together for three years, the rules are slightly different. This is called a de facto relationship of short duration. If you separate after a relationship of less than three years, then relationship property claims don’t arise unless there is a child of the relationship or the claiming partner made a substantial contribution to the relationship, and if the Court considers there would be serious injustice without the division of relationship property. This is a high legal threshold to meet. In this situation, the presumption of equal sharing won’t apply. Instead, relationship property is divided based on contributions to the relationship. Contributions can be both financial and non-financial (e.g. care of children and maintenance of the household). How can I protect my assets? Enter into a Contracting Out Agreement A Contracting Out Agreement (more commonly known as a “pre-nup”) is a legally binding agreement that allows you to “opt out” of equal sharing upon separation or death. For example, if you own a house and your partner is moving in, a Contracting Out Agreement can say that your partner will not be entitled to a half share of your house once you have been together for 3 years. You can enter into a Contracting Out Agreement at any time when you are contemplating moving in or already living together. If you have already been living together for 3 or more years this is still possible although can be a more difficult proposition as the presumption of equal sharing kicks in at 3 years. A Contracting Out Agreement is generally the most effective way to protect assets and manage relationship property expectations before or during a de facto relationship. Deciding not to move in together If you are not ready to take this step, choosing not to live together can minimise the risk of equal sharing. However, this is not a risk-free decision. Within modern relationships, living together does not always look like sharing one residence. Lines can become blurred and one party to the relationship may believe a de facto relationship exists whereas the other party understood the relationship had not yet crossed that threshold. Does a Trust protect my assets? There is a common misconception that transferring assets into Trust can protect them from relationship property claims and avoid the need for a Contracting Out Agreement. This is not the case. There are many relationship property claims that can be made against assets in trusts, so this is not an effective way to protect your assets when entering into a de facto relationship. If you would like to learn more about Contracting Out Agreements you can read this article here, or get in touch with our experienced Family Law team. We can offer you tailored legal advice for your situation to protect your property interests.

If you have recently separated from a de facto partner, or had your marriage or civil union dissolved, you may be wondering whether spousal maintenance applies and what financial support obligations may arise following separation. The Family Proceedings Act 1980 is the law governing the liability of one party to pay for the other party’s maintenance for a period of time after divorce or separation. In most cases, ex-partners will not be held liable to pay spousal maintenance. However, you may be liable to pay maintenance to your ex-partner if they cannot practicably meet all, or any part of their reasonable needs in certain circumstances and you have the means to assist. Spousal maintenance sits outside any existing or ongoing child support payments. When is Spousal Maintenance payable in New Zealand? A wide range of factors are taken into account when determining whether maintenance should be paid and how much. This can include: Your ex-partner\'s ability to become self-supporting post-separation is constricted because of the division of functions during your relationship (for example, one partner worked and so progressed their career while the other looked after the children) or their likely earning capacity; Financial and caregiving responsibilities; Your standard of living while you were together; and Your ex-partner may be undertaking education to improve their ability to become self-supporting in the future These issues often arise alongside relationship property matters, although spousal maintenance and relationship property claims are assessed separately. When determining how much maintenance should be paid, this will involve looking both parties’ current income, whether the paying party is financially supporting anyone else, and any other relevant circumstances which may make one party liable to support the other. Typically, both parties will need to complete a budget detailing their respective expenses and income. How long does Spousal Maintenance last? The payment of maintenance will not be forever. Spousal maintenance is intended to provide temporary financial support while the receiving partner works towards becoming self-sufficient following separation. Ex-partners who are entitled to maintenance must assume responsibility for their own needs within a reasonable time frame. Spousal maintenance entitlements and payments depend on the unique circumstances of each couple. These factors determine whether maintenance is payable, the amount to be paid, and the duration of any payments. When should you seek legal advice? If you believe you may have a claim for spousal maintenance, or your former partner has raised a claim against you, our family law team can provide advice tailored to your circumstances and help you understand your rights and obligations.

What is a dissolution of marriage? Separation can be a difficult time, but in New Zealand applying for a divorce, legally called a dissolution of marriage, is generally a straightforward and non‑contentious process. A dissolution of marriage is a separate legal process from resolving arrangements for children or dividing relationship property, although these issues are often addressed at the same time following separation. When can you apply for a divorce? There are several things to be aware of: You do not need to have been married in New Zealand, provided at least one spouse is ‘domiciled’ in New Zealand (has made New Zealand home) You and your spouse must have been living apart for two years for the Family Court to make a dissolution order (an order dissolving your marriage, meaning you are no longer legally married) During this two-year period, it is okay if you have resumed living together at certain times for short periods if: The periods of living together totaled no more than three months; and The periods of living together occurred for the purpose of attempting to get back together. If there are children of the marriage, the Family Court will need to be satisfied that appropriate arrangements have been made for the care of the children post-separation. If you cannot agree on a fair division of relationship property, you need to apply separately to the Family Court to resolve this issue within twelve months of the Dissolution Order being made. How do you apply? Once the two-year period of living apart has passed, you can file an application in the Family Court for a Dissolution Order: You can apply for dissolution on your own: Apply for a divorce on your own | New Zealand Ministry of Justice Or you can apply in agreement with your spouse: When you both agree to get a divorce | New Zealand Ministry of Justice If you apply on your own, then rules apply regarding service on your spouse. We can assist you with this process. Relationship property and other considerations You do not need to wait for two years to resolve your relationship property division or children’s care arrangements. Most people begin working through these issues shortly after separation, so they are sorted well before the “two year period” has expired. If there is no dispute about when the marriage ended, most people are able to agree to file a joint application for dissolution of marriage. This is why the process is usually non-contentious. Note that from October 2025, an exception to the two-year period of living apart rule is in force for situations of family violence. Our experienced family law team is happy to assist you with any aspect of the divorce process, including dissolution of marriage applications and relationship property matters.