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These pages provide information on the law affecting adult relationships. They explain –
Site updated 1 August 2010
Content on this page has been adapted from Wellington Community Law Centre's Legal Reference Manual Copies of the Legal Reference Manual are available for sale. An order form is available here.
Getting married or entering into a civil union or de facto relationship carries with it a number of legal rights and obligations.
Increasingly, de facto relationships have been put on the same legal footing as marriages (and now civil unions). For example, de facto couples are now treated largely the same as married and civil union couples if their relationship ends and one partner asks the Court to divide the couple’s property under the Property (Relationships) Act.
The following pages explain the legal status of each type of relationship and how these relationships begin and end –
Marriages
Civil unions
De facto relationships
Marriage is a formalised legal relationship between two people of the opposite sex.
A man and a woman can get married if –
Same-sex couples cannot marry in New Zealand.
You will need to complete a “Notice of Intended Marriage” and file it with the Registrar of Marriages for your area, along with the necessary consents from parents or guardians if either or both of you are under 18. (You can download copies of the notice and the consent forms from www.dia.govt.nz.)
The notice includes a statutory declaration, which one of you will have to sign in front of a Registrar of Marriages at Births, Deaths and Marriages office. You’ll also have to pay a fee.
If either of you have been married or in a civil union before, you’ll need to give the Registrar a copy of the dissolution (divorce) order.
After you’ve filed your notice and at least three days have passed, the Registrar will issue you with a licence allowing the wedding to go ahead.
The wedding must take place within three months after the licence is issued.
You must be married by a registered marriage celebrant. This includes ministers, Registrars of Marriage, and people who’ve been approved as marriage celebrants under the Marriage Act 1955.
A marriage formally comes to an end when the Family Court issues a dissolution (divorce) order.
No formal legal steps are necessary for a couple to separate – they simply stop living together. However, one of them may want to apply to the Family Court for a separation order; this can be a useful record of when the couple separated if one or both of them later applies for a dissolution order.
A married couple can change the form of their relationship to a civil union without first having to dissolve their marriage. They start the process by completing a “Notice of Intended Civil Union change of relationship from marriage” (available from www.dia.govt.nz).
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A civil union is a formalised legal relationship between two people that is similar to marriage, except that the couple can be either the same sex or the opposite sex.
Civil unions were established as a new type of legally recognised relationship on 26 April 2005, by the Civil Union Act 2004.
Two people can enter into a civil union if –
You’ll need to get a civil union licence and then have a formal ceremony, either before a Registrar of Civil Unions or an approved civil union celebrant.
First, you’ll need to lodge a notice called a “Notice of Intended Civil Union” with the Registrar. (You can download a copy of this from www.dia.govt.nz). The notice includes a statutory declaration, which one of you will have to sign in front of a Registrar of Civil Unions at a Births, Deaths and Marriages office. You’ll also have to pay a fee.
The Registrar will give you a civil union licence, usually three days after you’ve provided them with your civil union notice.
The civil union ceremony must take place within three months after you’re given the civil union licence.
The ceremony can be carried out by a Registrar of Civil Unions at a Registry Office during ordinary business hours, or by an approved civil union celebrant at some other place, at any time or day of the week.
A civil union formally comes to an end when the Family Court issues a dissolution order.
No formal legal steps are necessary for a couple to separate - they simply stop living together. However, one of them may want to apply to the Family Court for a separation order; this can be a useful record of when the couple separated if one or both of them later applies for a dissolution order.
A couple in a civil union can change the form of their relationship to a marriage without first having to dissolve their civil union. This does not include same-sex couples, because they cannot marry in New Zealand.
To change to a marriage, the couple must start by completing a “Notice of Intended Marriage change of relationship from civil union” (available from www.dia.govt.nz).
For most areas of the law, de facto partners now have the same status as people who are married or in a civil union. For example, when a de facto couple split up, the laws that deal with how their property is divided treat them largely the same as married and civil union couples.
Similarly, the Care of Children Act 2004 generally treats de facto partners the same as married and civil union couples. For example, if they’re sharing day-to-day care of the child, the partner of a parent is entitled to apply for a parenting order for the child, whether they’re married, in a civil union or in a de facto relationship. See Info sheet Care of children when parents separate.
However, the exact definition of a de facto relationship can vary from Act to Act, as explained below.
A de facto relationship is a relationship between two people, whether of the same sex or the opposite sex, who live together as a couple but who aren’t married or in a civil union. For the relationship to be legally recognised, however, both people must be of a certain age, and this age can vary depending on the particular area of law.
For example, there’s a general definition of de facto relationship in the Interpretation Act, which includes a requirement that both people must be at least 16, and that 16 and 17-year-olds need the consent of their parents. This definition applies to areas of law like the Care of Children Act, which doesn’t have its own definition of de facto relationship.
The Property (Relationships) Act on the other hand, which deals with how property is divided when a couple break up, does have its own definition of de facto relationship. This says both partners must be at least 18 for the relationship to be recognised under that Act. So when it comes to dividing property, it’s this minimum age of 18 that applies.
The Property (Relationships) Act also sets out a number of specific factors for the Court to consider when it’s deciding whether two people have in fact been living together in a de facto relationship – such as whether they live in the same house, whether they have a sexual relationship, and how the relationship appears to other people.
Unlike marriages and civil unions, no formal legal steps are necessary to begin or end a de facto relationship. The two partners simply start, or stop, living together as a couple.
Content on this page has been adapted from Wellington Community Law Centre's Legal Reference Manual. Copies of the Legal Reference Manual are available for sale. An order form is available here.
This page explains about separation agreements and separation orders.
When a married, civil union or de facto couple separate, they can choose to make a separation agreement.
In the case of married and civil union couples, if only one of them wants to separate the other may want to apply to the Family Court for a separation order.
Neither a separation agreement or a separation order is necessary for you to separate. But they may be useful – for example, to record the fact that you’ve separated and the date on which this happened.
A separation agreement is an agreement made by a married, civil union or de facto couple that they’ve decided to live apart. It can be a spoken or written agreement.
A separation agreement can be registered in the Family Court as a “consent order”. This means that if anything goes wrong, it can be enforced just like a Court order.
No. But an agreement can be a useful record of the decisions you make when you separate – such as who’ll have day-to-day care of the children.
For married and civil union couples, the agreement can also be useful as a record of the fact that you’ve separated and when you separated, if you later apply for a dissolution of your marriage or civil union (divorce).
A separation agreement can deal with issues such as –
A separation agreement will be valid even if it’s not in writing. But it’s better to put it in writing, and to date it and have both of you sign it.
But if the agreement deals with how you’ll divide your property, you must follow some special rules –
Find out more about making your own property-sharing agreements.
The Family Court can make a separation order for a married or civil union couple if the Judge is satisfied there’s a “state of disharmony” between them so that it’s unreasonable to expect them to keep living together.
Formally, the law says the effect of the order is that the couple no longer have any obligation to live together. However, it’s unlikely the Courts would ever recognise that two people have a legal “obligation” to live together, whether or not a separation order has been made.
A separation order doesn’t end the marriage or civil union, or change either person’s rights or obligations.
If a married or civil union couple agree to separate then it’s not necessary to obtain a separation order. However, if one partner doesn’t want to separate, the other may find it useful to obtain the order.
No. The law will recognise that their de facto relationship has come to an end if they simply stop living together as a couple; they don’t need to take any formal legal steps.
However, de facto partners may need to use the law to resolve other issues around their relationship, such as care arrangements for the children or how relationship property will be divided.
When one partner applies to the Family Court for a separation order, the couple will usually be referred to counselling. In some cases this won’t happen. For example if –
Dissolution is when a marriage or civil union is formally ended by a Family Court order. It’s more commonly called “divorce”. These pages explain -
The grounds for dissolution
Applying for a dissolution
Opposing an application for dissolution
How a dissolution order is made
To get a dissolution order, you must show the Family Court that your marriage has irreconcilably broken down. There’s only one way to establish this, and that’s to show that you and your ex-partner have been living apart for the last two years.
Dissolution in New Zealand is sometimes described as “no fault”. This means you don’t have to show that one of you has been at “fault” in some way – for example, that one of you had an affair during the relationship.
If you have children, however, you must also satisfy the Court that you’ve made arrangements for their care (including day-to-day care and maintenance), or that there’s a good reason why you haven’t made any arrangements.
You can prove this by –
You can still satisfy the two-year separation requirement even if you lived together for a period during those two years, so long as this was not more than three months. The main reason for living together again must have been to try to get back together (“reconciliation”). You can even get back together more than once, as long as the total time together is not more than three months.
You and your ex-partner can apply for dissolution order together, or one of you can apply alone.
You must file the application in the Family Court. You can get copies of the forms from the Family Court, or download them from the Family Court website at www.justice.govt.nz/family.
Applying for dissolution is relatively simple. You usually don’t need a lawyer.
When you apply, at least one of you must be living in New Zealand.
Yes, there is a fee. Contact your local Family Court to find out how much this is.
If you hire a lawyer, you’ll also have to pay your lawyer’s fees. But it’s not usually necessary to hire a lawyer to get a dissolution.
You can’t get legal aid for a dissolution. However, legal aid is available for other related family issues, such as care of children or the division of property.
If you and your ex-partner both agree to dissolve your marriage or civil union, you can make one application together. These joint applications are simpler and faster, and can usually be dealt with by the Family Court Registrar without a hearing and without you having to go to Court.
A single application is when you apply for a dissolution on your own. This might be because your ex-partner doesn’t agree to the dissolution, or because you don’t know where they are. See how the process works. The process is explained here.
If one person doesn’t think the marriage or civil union should be dissolved, they can oppose the application for dissolution.
You must complete and file the following documents with the Family Court –
You should also attach the following documents to your affidavit –
No. If you’ve made a joint application and neither of you wants to appear in Court, a Court hearing is not necessary. Your application will be dealt with by the Family Court Registrar, rather than a Judge, and without a Court hearing.
If you’re applying alone for a dissolution order, you are called the “applicant” and your ex-partner is called the “respondent”. You must complete and file the following documents with the Family Court –
Once you’ve filed the documents with the Court, you must arrange for copies of the application and the other documents to be “served on” your ex-partner. This means the documents must be given to them personally. You can’t serve the application on them yourself.
The documents can’t simply be posted to your ex-partner, even if they’re living overseas.
It’s preferable that you get someone who knows your ex-partner to do this. If that’s not possible, you can get anyone over 18 to do it – for example, a private investigator, a process server, or a Court bailiff. You’ll have to pay the cost of this yourself.
If the person who serves the documents knows your ex-partner, the server must complete an Affidavit of Service (Form G8), stating that they know them and that they’ve served the application on them.
If the server doesn’t know your ex-partner, they must complete an Affidavit of Service (Form G8) and prove that the documents were served on the right person by attaching either –
If you don’t know where your ex-partner is, you’ll need to file with the Family Court an “Application for Substituted Service” or an “Application to Dispense with Service”. You’ll probably need a lawyer to help you do this.
The Court will then consider whether serving your ex-partner in some other way will be enough – for example, giving the application to one of their family or advertising it in a local newspaper.
There will only be a Court hearing if your ex-partner asks to appear in Court before a Judge or decides to oppose (“defend”) your application. Otherwise, your application will be dealt with by the Family Court Registrar, rather than a Judge, and without a Court hearing.
If one person thinks the marriage or civil union shouldn’t be dissolved, they can either –
They must do this within 21 days after being served with the application for a dissolution.
The person would need to show that the couple haven’t been separated for the necessary two years. It’s very difficult to challenge the application on any other grounds. For example, it’s not enough that they simply don’t want the relationship to end.
The Family Court Registrar can make a dissolution order if –
If the Registrar makes the order, it takes effect one month later, unless circumstances change before the month is up and one person asks for a Court hearing.
If one person wants to oppose the other’s single application for a dissolution order, there will be a hearing before a Family Court Judge.
If the Judge makes a dissolution order after the hearing, the order takes effect one month after it is made. But special rules apply if one person appeals the order or if either person dies.
If one or both of you want an order immediately (for instance, if one of you is due to remarry), or if for any other reason you want a Judge to make the order, you’ll need to ask for an undefended hearing where both of you appear in front of a Judge.
This isn’t a full Court hearing, and you appear as a formality only. When the Judge makes the dissolution order, the order takes effect immediately.
Neither person can marry or enter a civil union until their dissolution order is final.
Whether the rules in the Property (Relationships) Act 1976 apply to you and your ex-partner depends on the type of relationship it was and how long you were together.
Yes. The Property (Relationships) Act is intended to be a last resort for resolving disputes between ex-partners. If you can agree between you on how to divide your property, there is no need to apply to the Family Court for an order under the Act.
You can divide your property any way you like but you must follow some special procedural rules when you make your agreement. This is also known contracting out of the Act.
Yes. In the case of a marriage or civil union, you must apply within one year after the marriage or civil union is dissolved. In the case of a de facto relationship, you must apply within three years after the relationship ends.
If your spouse or civil union or de facto partner dies, you also have the option of having the relationship property divided under the rules in the Act, instead of taking what you’re entitled to under the will or, if there’s no will, under the legal rules of inheritance.
If you and your de facto partner were together for three years or more, you’ll be covered by the equal-sharing rules in the Act. This means the family home, car and household furniture and appliances will be divided equally.
If you were together less than three years, you usually won’t be covered by the Act at all. But there are some exceptions to this. The Act may apply to short-term de facto relationships if you had a child together or if you made a “substantial contribution” to the relationship. The Court must also be satisfied that not applying the Act to your relationship would cause a “serious injustice”. In these cases, your property will be divided according to the different contributions each of you made to the relationship.
If the Act doesn’t apply to you, the ordinary rules of property ownership will decide what property you’re entitled to. For example, if the home you shared is legally owned by your ex-partner only, you will have no right to a share in the home.
But you may be able to show that some kind of “trust” existed that would entitle you to a share in particular items of property, despite the fact that you aren’t the legal owner of this property. You would need to show either –
In the Property (Relationships) Act, a “de facto relationship” is where two people who are 18 or older live together as a couple without being married or in a civil union.
The Family Court must take certain factors into account when it’s deciding whether two people were living together as a couple and if so, when. These factors include –
If a couple were together for at least three years, usually their “relationship property” is divided equally between them, while any property that is one person’s “separate property” is usually retained by that person.
This basic principle applies to married, civil union and de facto couples.
There are some special issues, such as how children’s interests are provided for, the use of trusts to reduce a partner’s entitlement and lump sum payments.
Relationship property is usually shared equally. Relationship property includes –
Relationship property won’t be shared equally if there are extraordinary circumstances that make equal sharing “repugnant to justice” (very unfair). In these cases, each person’s share in the relationship property depends on the different contributions they made to the relationship.
All property that’s not relationship property is called “separate property”. Usually it stays with the person who owns it.
Most property owned by one person before the start of the marriage, civil union or de facto relationship is separate property, except the family home, car, household furniture and appliances.
Gifts and inheritances that either of you received while you were together are separate property, unless you mix them with relationship property. An example of mixing might be where inherited money is used to pay off the mortgage on the family home.
Also, if you do something, whether directly or indirectly, to increase the value of your partner’s separate property (for example, doing work on their house), the increase in value is relationship property, not separate property. The same applies to any increase in value of separate property that comes from using relationship property – for example, if you used money from a joint account to upgrade a house that is separate property.
Debts are separated into personal debts and relationship debts. Relationship debts are taken into account in working out the value of the relationship property to be divided. These include, for example, joint debts, joint business debts, and debts incurred to manage the household or bring up the children.
Personal debts, on the other hand, are the responsibility of the person who incurred them.
When it divides a couple’s property, the Court must take into account the interests of the couple’s children. It can make a variety of orders to provide for the children, including –
The Family Court can order one of the ex-partners to compensate the other if they transferred relationship property to a trust to reduce what their ex-partner would otherwise have been entitled to under the Act.
The Court can do this by ordering the person who transferred the property either to pay money to the other person out of relationship or separate property, or to transfer relationship or separate property to them. The Court can also order the trustees of the trust to pay some of the trust income to the other person.
In some cases the Family Court can award a lump-sum payment or a transfer of property to one of the ex-partners if they will have significantly less income or lower living standards than the other after they split up.
The Court can do this if the economic disadvantage results from how the couple divided their responsibilities when they were together – for example, if one of them resigned from their job to look after the children while the other focused on their career.
If a marriage or civil union lasts for less than three years, it’s covered by the Property (Relationships) Act, but in a special way. Equal sharing usually won’t apply to the family home and chattels, such as the car and household furniture and appliances. Instead, each person’s share will depend on the contribution they made to the marriage or civil union.
In special cases the Court can decide to treat a marriage or civil union of three years or more as if it were for less than three years, so that equal sharing doesn’t apply.
If a de facto relationship lasts for less than three years, the Property (Relationships) Act usually won’t apply at all. Instead the ordinary rules of property ownership decide what property each person is entitled to.
There are some exceptions to the rule that the Act doesn’t apply to de facto couples who were together less than three years. Also, even if the Act doesn’t apply, a de facto partner may in some cases be able to show there was some form of trust that entitles them to a share in particular items of property.
In that case the length of the de facto relationship is counted in working out the length of the marriage or civil union.
For example, if a couple were married for two years but also lived together as a de facto couple for the previous two years, the couple is treated as having been married for four years.
This is where a couple make their own agreement for how to divide their property. They don’t have to follow the rules in the Property (Relationships) Act for dividing property. But they must follow some special rules as to how they go about entering into the agreement.
You can make a contracting-out agreement when you begin your marriage, civil union or relationship (sometimes known as a “prenuptial” or “pre-nup” agreement), or during the relationship, or after you split up.
Agreements are often used by couples entering a second or subsequent relationship later in life, especially if they already have substantial property that they want to keep as their separate property.
For your agreement to be legally valid, you must follow these special rules –
The Court can cancel a contracting-out agreement only if the agreement would result in a “serious injustice” – for example, if an agreement is very one-sided and doesn’t allow a partner to share in property that the couple acquired during the relationship.
The Property (Relationships) Act also deals with how you and your partner’s property is divided when your partner has died.
In that case, you, the surviving partner, can choose either –
If you apply under the Property (Relationships) Act, your right to share in the property takes priority over rights that any other people might have under your partner’s will or under the laws of inheritance.
When a couple separate, the law encourages each person to become financially independent as soon as possible. But in some cases the Family Court may require one ex-partner to pay maintenance (financial support) to the other for a limited period.
Any person claiming maintenance will have to show the Family Court that their case comes within one of the situations where maintenance can be ordered. Also, a person can’t claim maintenance if they’ve married someone else, or entered into a civil union or de facto relationship with someone else.
If the couple were in a short-term de facto relationship (less than three years), usually the Court can’t award maintenance at all.
Even if the case fits one of the situations where maintenance can be awarded, the Family Court can decide not to award maintenance if the person claiming it has acted in such a way that this would be “repugnant to justice”.
After your marriage, civil union or de facto relationship has ended, you’re entitled to be paid maintenance by your ex-partner if you can’t practicably meet some or all of your reasonable needs because of one of the following factors –
If your de facto relationship lasted less than three years, there are extra restrictions that apply. As well as you having to show one of the grounds for maintenance (see above), the Court can’t award you maintenance unless –
If the Family Court orders one ex-partner to pay maintenance to the other, the amount will depend on –
Usually maintenance will be granted only for a period that the Court decides is reasonable in the particular case. By the end of that time, the person receiving maintenance is expected to have taken responsibility for supporting himself or herself.
The Family Court can order maintenance to be paid as a lump sum, or in regular instalments.
The fact that you’re receiving a benefit from Work and Income doesn’t take away or limit the liability of your ex-partner to pay maintenance to you.