What is a separation agreement?
A separation agreement (sometimes called a deed of separation) is a legally binding agreement that sets out the arrangements made by a married couple, partners in a civil union or a 'de facto' couple after they’ve decided to live apart. It can be a spoken or written agreement.
Who might use a separation agreement?
This document can be used by:
- married couples who have decided to divorce
- civil partners separating in expectation of dissolution of the partnership
- unmarried couples (in a 'de facto relationship') who own property and other assets together (and perhaps who have children together)
- couples and partners who want to live apart yet remain married or in a civil partnership
A de facto relationship is one where there is mutual commitment to being together - the couple lives together for more than three years, dividing household duties, sharing costs and developing a sexual relationship. As such, a couple can separate but stay living in the same house because their qualifying relationship ends.
Why use a written separation agreement?
When a relationship ends and partners go their own ways, there can be a great deal of uncertainty as to who will pay previously joint bills, how possessions and assets will be split, and who will look after any children.
An agreement like this one provides both parties with certainty and a degree of protection as to how each person will live after separation, perhaps while a divorce is being settled.
Avoid additional stress and worry
Even if you break up amicably, your life changes enormously. You can gain some certainty - or at least reduce uncertainty - by sorting out who owns what, what each side owes the other, what each has continuing responsibility for and any continuing financial support for child care.
Prevent future arguments
Recording what you agree in writing creates evidence of what you intended to happen when you split up. Once they have signed a formal agreement, it is more difficult for your partner to argue that they did not reach agreement on something.
Save time and money on solicitors
Solicitors can be good negotiators and can offer good independent advice on entitlements, but there is nothing in this type of document that requires legal knowledge or a solicitor. This separation agreement achieves much the same as a solicitor would do for you after a few meetings.
Unless you want a solicitor for another reason (such as legal advice), you can save time and money by completing this separation agreement template yourself instead of asking them to do it for you at a high hourly cost.
It could form the basis of a consent order in divorce
If you can demonstrate that the agreement has worked well for a period of time, a judge is very likely to let it form the basis of a consent agreement in divorce proceedings (or when dissolving a civil partnership).
Keep the relationship amicable
Court proceedings while getting divorced inevitably become acrimonious. There is a much greater chance of keeping your future relationship friendly after your relationship breaks down (and agreeing a split that suits both parties, keeping joint friends and making access to children easier) if you can work out together the details of the separation before you reach a court.
A deed of separation can make the divorce process easier, faster and less stressful because many of the difficult things have been agreed already.
The law on separation agreements
A separation agreement is a legally binding contract in New Zealand provided that each partner has obtained independent legal advice from a solicitor and can provide certification that this has been done.
If one party breaks the terms, the other can sue for breach of contract.
You can also apply to the Family Court to have your separation agreement registered as a consent order (also known as a separation order). This means that if anything goes wrong, it can be enforced just like any other Court order.
A breach of a consent order can be serious - an intentional breach without a reasonable excuse is a criminal offence and punishable by a jail sentence.
For the Family Court to 'convert' your separation agreement to a consent order, the following conditions must be satisfied:
- the agreement is fair
- you both worked on the agreement without pressure and entered into it by your own free will
- you both had adequate knowledge of the situation (you both receive independent legal advice in advance of signing)
- there have been no overlooked or unforeseen changes in circumstances since it was signed
- it covers all your assets after full disclosure
The extent to which a judge will stay with your own agreement reflects the level of their acceptance of the above three points.
if you have made a contracting out agreement (also known as a prenuptial agreement), then a judge will also consider that contract when deciding whether to register the separation agreement as a court order.
Arrangements for care and access to children
Within any separation agreement, children arrangements have no legal standing at all until they are registered as a consent order.
The Court will take no account of what you have agreed in terms of child support but will start afresh in considering the interest of each child.
Of course, if a satisfactory child arrangements are already in place (which may include any of child maintenance payments, child custody and visitation schedules) it is likely that the judge will order that the arrangement should remain undisturbed.
So while your arrangements for your children might be changed at a later date, it is always worth making them, because it is bound to be in their interests to have a secure and firm framework for their lives.
Completing your own separation agreement
This straightforward separation contract is easy to complete.
First, you should discuss at a high level what you both want before starting divorce or dissolution proceedings. You may have already separated from each other. One spouse is likely to have different reasons for wanting a certain split to the other.
Next, you should each draw up a list of relationship property. These are assets such as the family home, overseas property, vehicles, money in joint bank accounts, life insurance policies, inheritances). This deed of separation provides for detailed disclosure, but we have no way of knowing every category of thing you might own. We suggest that you consider carefully what other assets you might have and make sure they are disclosed and accounted for.
You may need to instruct experts (such as an accountant and/or a surveyor) to value financial and physical joint assets if you can't agree on a fair price yourselves.
Also consider joint debts, such as your mortgage, overdrafts and credit cards.
You may also want to consider how to deal with the loss of intangible benefits of marriage, such as tax benefits or joint life insurance provided as an employee benefit to one of you.
If you are unsure about dividing property, Citizens Advice Bureau or a local community law centre can usually help with advice.
Arrangements for children
This template provides for you to set down your arrangements for your children. Although not binding on the Court, your written agreement together will reduce the risk of future disagreement, as will all other aspects of your lives.
If possible, your arrangements for child support should go further than simply day to day child custody and child maintenance payments. If you can show the court how you and your ex partner will provide for all needs of your children, your arrangements are more likely to be accepted.
Obtaining 'sign-off' from a solicitor
The role of the solicitor is to 'advise' you as to your rights under law (such as equal sharing of relationship property and retention of your own separate property), then make sure that you understand how you are varying those rights within your own separation agreement.
It is a simple way of reducing the number of claims in Court later that one party was coerced into signing, or didn't understand the implications of the agreement.
Although you might ask for their opinion, keep in mind that the role of your solicitor is not to approve your agreement or the division of your major assets. Their role is to act as a certificate provider that you were aware of what you were agreeing to.
The issue you might find is that many solicitors are unwilling to give advice without also drafting your agreement for you. The reason is that the advice component takes relatively little time, and is therefore not very profitable. Drafting an agreement, particularly from a template, can be charged to the client for a much higher fee for not much work.
Most solicitors use a template issued by the New Zealand Law Society. Being familiar with it, drafting takes less time.
If you use our version, your solicitor might tell you that it must be rewritten using their template. This isn't true - there is no legal requirement to use a particular template. If nevertheless you decide to use that solicitor, our document can be used by them to record what your agreement is.
Contents of our separation agreement template
The separation agreement covers:
- Details of the parties, including the separation date
- Details of any children, if applicable
- Arrangements for the disposal of the family home by sale, or
- An option for one person to keep the matrimonial home and be bought out by the other
- Payment of outgoings such as bills and other expenses – who will pay
- Division of assets and funds, and other personal possessions and household property
- Assignment of insurance policies
- Division of business property
- Maintenance (periodic) payments for the spouse and any children
- Lump-sum payments
- Conclusion of joint accounts
- Child access and support arrangements
- Parental rights arrangements