Some separated couples start divorce proceedings the very day they’re legally entitled to. Others wait years before bothering. And, then, there are those who go to their graves still legally hitched to someone they’ve been apart from for decades.
What many don’t realise, however, is that timing – either moving too quickly, or leaving it too long – can be everything when it comes to dissolving a marriage or civil union, with potentially serious ramifications for the spouses or civil union partners, and their loved ones. And, remember, you can only remarry or enter into a new civil union once your divorce is finalised and the dissolution order has taken effect.
Some people see divorcing as an important psychological step in “moving on”, and can’t wait to formalise the split – but, if you haven’t yet sorted out the relationship property, do not proceed with a divorce application until you’ve taken legal advice. Unless you’ve already formalised an agreement over assets, you have only 12 months after divorcing to file relationship property proceedings in court, although the timeframe can be extended in special circumstances.
On the other hand, it tends to come as a huge shock when a loved one dies and those close to them discover, because the correct legal protections weren’t in place and the parties never divorced, an erstwhile husband or wife, or civil union partner, can lay claim to the deceased’s estate – even years and years after the split.
How to divorce
Depending on your circumstances – and whether the other party agrees – the path to divorce can vary.
For starters, there are no “quickie” or fault divorces in New Zealand. The law dictates you must have been separated for two years or more before you can seek a dissolution order. There is a small allowance – during that period you can have lived together, but for no more than three months, if you were trying to work on reconciling. Any more than that, however, and the clock resets.
Jurisdiction can sometimes be an issue. At least one of you needs to be “domiciled” in New Zealand before you can apply for a divorce here. (Explaining the legal intricacies of “domiciled” is worthy of an article all of its own – but, in brief, regardless of where you were born, if you have made New Zealand your home with an intention to live here permanently, then you are domiciled in New Zealand. The fact you got married in New Zealand is not, by itself, sufficient to allow you to get divorced here. At least one of you needs to be domiciled in New Zealand.)
Be sure you have a copy of your marriage certificate. (Note – when you were married, you would have completed a “notice of particulars”. Most people think – and many have even tried to convince me – that this is their marriage certificate. It isn’t.) When you file your application, you need to either produce an extract of your original marriage certificate or a certified copy of it.
To divorce, you must submit the requisite paperwork to your local Family Court together with the $211.50 fee. If you have children together, the court will also need to be satisfied that there are satisfactory arrangements in place for their day-to-day care and welfare.
As well as attesting to when you separated on your dissolution application form, the court also requires verification of your date of separation. If you had a separation agreement, or a separation order was granted, either of these can be used. Otherwise, you will need to provide other evidence. Your affidavit is sufficient.
If you and your former spouse or civil union partner are making a joint application to divorce, the Family Court Registrar will check the forms and make the dissolution order, a month after which the divorce takes effect. If you can’t wait, you can apply to appear in court together and a Judge can make the dissolution order, with the divorce taking effect immediately.
Going it alone
Matters tend to be somewhat more complex if you are making an application by yourself (a single application.) Your ex can choose to defend the application. If that is the case, there are strict timeframes. If they are resident in New Zealand, then they have 21 days; if they live in Australia, it is 30 days, and, anywhere else in the world, they have 50 days.
Things can sometimes get tricky with a single application. Once the application has been filed, the court will provide you with a set of documents that needs to be served on your spouse or civil union partner. The court does not serve these types of applications, but will provide instructions about what you need to do. You can’t serve them yourself, but they can be served by someone who knows your former spouse or partner and can identify them. Alternatively, a professional process server can be used. A complication that I regularly come across is if the other party lives overseas. Should this scenario apply to you, you’ll need to get permission from the court to serve the papers outside of New Zealand. That is pretty straight forward, but service can sometimes be challenging, especially if foreign languages are involved.
The person who serves the papers needs to complete an affidavit of service, which documents how they served the papers and how they know that the correct person was actually served. That affidavit must be returned to the court, so that the Judge or Registrar can be satisfied the papers have, indeed, been served properly.
If your application, however, is not opposed within the time limit, it goes to the Registrar to be checked. Your divorce takes effect one month after the dissolution order is made. If your application is opposed by your ex, a defended hearing will be held, during which a Family Court Judge will hear from both parties and decide whether or not to grant a dissolution order.
When to seek help
You do not need to use a lawyer to file an application, although many people do for a variety of reasons – particularly where there are challenges around the all-important serving of the divorce papers.
Don’t forget, either, it’s so important you double check your position with your legal adviser if you plan to divorce before the relationship property agreement has been finalised. Similarly, talk to your lawyer if you have assets and haven’t yet formally divorced to check whether you need to put protections in place to prevent your ex laying an unwanted claim to your estate.