This article will beuseful reading if you are considering divorce or separation or have decided to go ahead with a divorce or separation. Separation can either be the beginnings of a divorce or it can be a ‘legal separation’, where the parties remain married, yet live apart.
A separation agreement consolidates all your arrangements into one legal document. Once signed, neither part can go back on their word without consequences. A deed of separation therefore gives you security financially and psychologically.
Counselling through the Family Court
If you intend to separate, there is free, confidential counselling through the Family Court of New Zealand. Simply contact the Family Court Co-ordinator at your nearest Family Court. There is also free counselling whether you are married, in a civil union, or in a de facto relationship.
If your relationship has already come before the Family Court in some way – for example, if you’ve applied for a parenting order for day-to-day care of the children – the court will encourage you and your spouse or partner to attend counselling to attempt to reach some agreement on important issues. Of course, decisions reached can be formalised in a separation agreement.
Is the agreement legally binding?
A separation agreement is a legally enforceable contract. However, there are two arrangements that over-ride it.
- If the agreement deals with property issues, there are procedural requirements that the deed must satisfy in order to be legally valid;
- If the agreement deals with arrangements for children, the agreement does over ride legal decisions made later in the court.In making decisions about child care arrangements, the court will be concerned only with what is in the best interests of the children.
What to include
Strictly speaking a separation agreement is simply an agreement o live apart, however, they often include other aspects such as:
- The maintenance of one spouse or partner by the other arrangements for day-to-day care of or contact with children of the relationship;
- Finances ;
- The marital home;
- How personal property is to be divided.
Requirements for separation agreements dealing with personal property
If the valid agreement deals with the division of ‘relationship’ property (real estate), it will override the provisions of the Property (Relationships) Act 1976. To be valid the agreement must:
- Be in writing;
- Signed by both parties;
- Have been made following independent legal advice;
- Have been signed and witnessed by a solicitor, who must certify that the effect and implications of the agreement were explained to the signing party.
Click to buy: Separation Agreement