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What is in a date?

October 26, 2019

Robert and Megan are using the Collaborative Process to work through the legal and financial issues arising out of their decision to end their marriage to one another. Before starting the process, their separation had been a “slow burn”, gradually having less of a marital relationship and more of one akin to being “flat mates”. In March, they finally decided their marriage was at an end but have carried on sharing their home and their finances until they reach final agreements in their collaborative process.

Jessica and Mitch had been living together in Rarotonga where Mitch had employment.  Three years ago, Jessica and the children would return to New Zealand so the children could attend school there and Jessica could return to working in her career which she hadn’t been able to pursue in Rarotonga. Initially, they would all travel back and forth between the two countries to spend time with one another. Gradually, Jessica and Mitch began making these trips less and less, just sending the children to spend time with Mitch until they realised their marriage was effectively over. They carried on sharing finances, however, until they could sort their property issues out at mediation.

Janine and Rochelle had been growing apart for a long time and Rochelle told me their civil union was over years ago even though they never made any decision to separate and “kept up appearances” for the sake of their children. Rochelle kept working and paying for all their expenses then learned a couple of weeks ago that Janine had commenced a new relationship. Rochelle moved out straight away and now wants to go to Court to immediately get a divorce and sever her civil union with Janine.

These couples all have one issue in common –  the problem of ascertaining when their separation date was. In some cases, this will be very clear cut, usually signified by one person moving out of the shared family home. For these couples, however, it is far less so. As couples face increasing challenges around housing affordability, the incidence of couples choosing to remain living in the family home for a period after separation is becoming increasingly common. Furthermore, some separations aren’t sudden events but rather slowly and organically unfold over time.

Why is deciding upon your separation date even important? A separation date is important for two reasons.

Firstly, in New Zealand, you can only submit to the Court an application for a dissolution of your marriage or civil union (your divorce) once you have been “living apart” for 2 years.

There is no other way around this. In your application for a dissolution, you will be asked when you made an oral or written agreement to separate. An agreement to separate, whether in writing or made orally, that has been in force for 2 years prior to the application being made may be treated by the Court as evidence that you having been living apart for the required two years.

You’d be forgiven for thinking that you must actually be living in separate residences to be living apart. However, the term is used in respect to living apart as a married or civil unioned couple.

You could still be separated and “living apart” if you have decided you are no longer living together in your marriage or civil union but, like Robert and Megan, still choose to reside under the same roof, effectively as housemates or flatmates.

The second reason for why your separation date is important has to do with the division of your relationship property and finances. The separation date may be important to your relationship property division in some or all of the following ways:

  • When your pool of relationship property to be divided is calculated, the value of some of your assets and liabilities will be taken at your separation date. Such assets include your Kiwisaver or superannuation schemes, your bank accounts and any loans or debts.
  • If, after the separation date, a party makes contributions to the repayment of relationship debts or the sustenance or improvement of a relationship asset, this could give rise to a claim by that party to be compensated for that post-separation contribution.  For example, if Mitch pays off a relationship credit card debt after separation, he can claim to be recompensed for Jessica’s share of this debt as part of the overall property division.
  • Claims for ‘occupation rent’ may start from the separation date where one person has had the benefit of occupying the family home while the other has had to pay for alternative accommodation.
  • Financial liabilities by one party to the other for maintenance and child support arise on separation. However, if you need to apply to IRD for Child Support, you need to be aware that IRD won’t back-date the child support to the date of separation and will only assess it from the date of it receiving an application. Sometimes, there will be some “crossover” between financial liability and post separation contributions. For example, if Robert wishes to claim from Megan his contributions of his income made to meet her expenses after separation, this may be offset or mitigated by any liability he has to maintain her after separation.

Trying to settle on an exact date where there was a meeting of the minds about separating can feel like an impossible task. Many couples settle for a pragmatic, sensible solution. For Rochelle, that meant deciding she could wait to apply for her dissolution rather than face the cost of a potentially costly legal argument about when she and Janine were separated. For Robert and Megan, they agreed on a separation date and that they would jointly apply for a dissolution 2 years from that date. However, for practical reasons, they agreed the separation of their finances including bank accounts, Kiwisavers and debts would be all be taken as the date of settlement of all their property matters given they continued to share finances until that time.  

If you would like more advice about your separation, contact Family Law Results pm (09) 297 2010 or at lawyers@familylawresults.co.nz.

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