Separation Agreements - The Definitive New Zealand Guide

Our guide explains what Separation Agreements cover, how to make one, what it excludes and must-know facts to help protect your family and financial rights.

Updated 24 September 2022

Know This First: If you're looking to separate from your partner or spouse, this guide covers what you need to know. In addition, we have a comprehensive frequently asked question section below, and if you're in any doubt about anything, we suggest contacting a lawyer.

Separation - Must-Know Facts and Summary:

You can simply separate by leaving. You don't need a court order or consent. These are only required to formalise any ongoing arrangements.
The main issues to consider upon separation are Living arrangements, Childcare, Child support and adult maintenance and the Division of relationship property.
Many separating people need to take steps to protect themselves and others, by applying for a protection order under the Family Violence Act 2018 - you can see how to do this here.
Divorce takes time. Under New Zealand law, married couples must have been living apart for at least two years before applying for a divorce.
A couple (whether or not married) has three years after they separate to divide their relationship property either through a separation agreement or a Family Court application. Our guide to divorce has more details.

Our guide covers:

Our guide to Separation Agreements, thanks to our friends at Agreeable

MoneyHub proudly partners with Agreeable, which offers a service to build you a personalised separation agreement online. Agreeable also offer online certification for your agreement, where you get expert legal advice and your signature witnessed, at a fixed price and without leaving home.
We believe the Agreeable service offers a faster, easier, and cheaper process compared to the traditional law firm approach.
You can learn more about their separation agreement service here.

Important: When should I contact a lawyer about a separation?

As early as you can. If the decision has been made to separate, you should begin the process of creating a separation agreement and work with your partner to put all relevant information into your separation agreement. Agreeable makes this easy with their online, personalised separation agreements.

Visit Agreeable

Separation vs Divorce - What is the Difference?

The lines between separation and divorce can sometimes be blurred. However, here are a few key differences to note:

Separation comes before divorce - you must agree to separate or have a court order specifying a separation date before you can get a divorce. Once a couple has been separated for at least two years, they can apply for a divorce.
A separation doesn’t have to be legally formalised - a couple can technically separate just by agreeing to separate and living apart. While a formalised separation (usually via a separation agreement) can make the process easier for everyone, it’s not a requirement for separation. Meanwhile, a divorce requires a formal declaration from the Family Court, officially called a Dissolution Order.
Divorced couples are no longer married - a couple that separated while married is still considered legally married, even if it has received a Separation Order from the Family Court. A divorced couple is no longer married once the divorce is finalised.
Non-married couples can separate - formalised separations are still possible - and common - for couples who didn’t marry. This means that a separation agreement (or a Separation Order) is the only option for formalising the end of a de facto relationship (generally defined as non-married/non-civil union couples that have lived together for at least three years). Divorce is only applicable to marriages and civil unions.
Separation gives you time to reconsider and decide on relationship property - the two-year minimum period for separation (before a divorce can be pursued) gives the couple time to reconsider their decision and decide on dividing relationship property. It is not advisable to apply for a divorce if you have not resolved your relationship property division. Upon divorce, a couple generally has just 12 months to agree on their division of relationship property; otherwise, the default equal sharing principle will apply.
For more details, our divorce guide has you covered.

Separation and Separation Agreements - What You Need to Know

What does it mean to separate?

A couple is considered to be "separated" when they no longer live together as a couple. A separation can occur informally without any official action or legal requirement. However, a written separation agreement that sets out when the separation occurred and how relationship property will be divided is generally recommended.

What are the best first steps to take in a separation?

The first step to take is to make sure that you, and your children, are safe during the separation. If you feel unsafe before or during the process of separating, you should consider applying for a Protection Order through the courts. Protection Orders protect and cover both the applicant and the children in the household. If this might apply to your situation, we suggest seeking more information through this guide.
If there are children in your relationship, your next thought should be towards agreeing on a parenting plan. If both parties agree on how to care for your children, you don't need to do anything through the court; however, writing down the planned arrangements in a private agreement is recommended. This will ensure that there is a full understanding of the decisions on day-to-day care, custody, and access. You can find more information on the Ministry of Justice website about parenting plans and child support.

What is a Separation Agreement?

If your separation is amicable, or at least not endangering any party, a common initial step is to consider a separation agreement. A separation agreement will formalise your decisions around the division of relationship property. After separating, many couples decide to write up a separation agreement.

While you can do this informally yourselves (especially if there are no major assets to divide), a separation agreement must meet a range of formal requirements to become legally binding and create assurance and clarity for the future. Because getting a separation agreement legally correct is vital, many people use a lawyer or legal service to build the agreement and make it binding under the law.

What should a separation agreement include?

Your separation agreement should include the following:

A confirmation that you and your partner have separated
The date of separation
A breakdown of all assets in either party's name or in joint names
Definition of what assets are relationship property and what assets are separate property
The planned division of relationship property assets (by default, the law will divide all relationship property 50:50).

Once you have your agreement, you will need to meet the following formal requirements to make it valid and legally binding:

The agreement must be in writing, and
Before signing it, both parties must have received independent legal advice, and
The signatures need to be certified by a lawyer, and
The lawyer must certify they have explained the implications of the agreement.

Does a separation agreement avoid the 50:50 relationship property split law?

Yes, if both partners agree, a separation agreement that meets the advice and certification criteria can allow you to contract out of the legal requirement for a 50:50 split and decide how relationship property is divided.

What if my partner doesn't want to separate?

Either party can make the decision to separate. If you cannot then get an agreement about the division of relationship property, you can file an application for the division of relationship property with the Family Court. Then, your partner will have to choose whether to defend against the application or accept the separation. This guide from the Department of Justice has more details about the steps involved.

If they choose to defend the application, you will both have to attend a hearing in front of a Family Court Judge. The Judge hears from both of you and decides how relationship property will be divided. These hearings cost about $900 per half-day, and the application for an order itself costs $740. The highest cost will be legal fees.

Know This: Legal aid is available for some people to assist with Family Court processes if they meet the criteria - this Legal Aid link has more information.

Our guide to Separation Agreements, thanks to our friends at Agreeable

MoneyHub proudly partners with Agreeable, which offers a service to build you a personalised separation agreement online. Agreeable also offer online certification for your agreement, where you get expert legal advice and your signature witnessed, at a fixed price and without leaving home.
We believe the Agreeable service offers a faster, easier, and cheaper process compared to the traditional law firm approach.
You can learn more about their separation agreement service here.

Important: When should I contact a lawyer about a separation?

Visit Agreeable

Financial Considerations to Make in any Separation

Money is a big factor in any separation. The best approach is to become financially independent as quickly as possible, something the law encourages to make the separation process smoother. However, there are other considerations to make, as we outline below.

Does my spouse/partner have to support me if we separate?

This is to be agreed between you and your spouse/partner. If your spouse/partner does not agree to maintenance, you may be eligible to claim for maintenance through the courts. This guide can provide more information.

Are there any other key financial arrangements to make?

It is generally recommended that both parties reorganise their finances upon separation and take control of their own finances. The law encourages both parties to become financially independent of each other as soon as possible. This avoids the issue of any further disputes around money.

Know This: If there should be financial support from one party to another, a Maintenance Order may be required to formally set out the support arrangements. Community Law provides an overview of financial support here.

Where can I find more information about finances?

For more information on managing your money after a separation, we suggest Sorted's excellent guide around handling money and changes in income as a result of separation here.

Separation Agreements - Frequently Asked Questions

Each situation is unique - the answers below are general and not specific to any relationship or dispute.

Why would you get a separation agreement?

A separation agreement provides clarity when you and your partner are splitting up, and that can help avoid disputes later. Once the agreement is signed by both of you, there is certainty and a plan to move on without ongoing disputes. Ending a relationship without a separation agreement is often expensive and emotionally exhausting.

Can my ex and I write our own separation agreement?

You can write your own separation agreement, but it is not recommended, and in our opinion, it’s not a risk worth taking. Even if you write your own agreement, you and your partner need to get independent legal advice and have your lawyers certify the agreement before it becomes binding under NZ law.

How legal is a separation agreement?

A properly executed separation agreement, with each party having received independent legal advice and certification (including having their signatures witnessed), is a binding legal document that you can rely on in court if you need to. However, a separation agreement that is confusing, poorly structured, or limited in any way may not be legally binding and may lead to expensive disputes in the future.

This is why it is generally recommended that you receive a separation agreement through a lawyer or expert service, such as Agreeable.

How do I separate from my spouse/partner in the same house?

You can separate just by leaving. Either party can decide to separate by leaving and no longer living with the other. Separating while remaining in the same house may lead to difficulties in any future legal processes. However, you can complete a separation agreement when you and your partner are still living together.

Know This: Living apart is not a requirement to be separated. You can still be defined as separated under the law even while still living together.

What am I entitled to when separating from spouse/partner?

If you have lived with your spouse/partner for three or more years, you will generally be entitled to 50 per cent of all relationship property, which might include the family home, chattels, cars, bank accounts, Kiwisaver, and debts (but not any property that solely belongs to your partner).

A separation agreement allows both of you to opt out of this 50:50 split and make your own decisions about what assets are shared and what assets are separate.

What should you not do during separation?

You should not forget to ensure that you, your children, and your pets are safe and accounted for during the separation. We have linked many trusted guides above for more information.
You should also avoid hiding any potential assets from your partner during the creation of a separation agreement, as failure to disclose all assets can lead to very long and costly disputes down the track.
It’s also important during separation that neither party tries to coerce or improperly pressure the other, as this can create significant personal, legal, and safety issues.
Finally, when you are creating your separation agreement, don’t forget to include any property or debts that are important to you. For instance, you might assume that your favourite classic Mustang is your separate property, but your partner might not. So please include it in the agreement so you both understand the position.

Who gets to stay in the house during separation?

This is a decision to be made between you and your partner.

How much does a separation agreement cost?

A separation agreement can cost over $1,000 (or much more) at traditional law firms for the document itself, followed by advice & certification that can cost anywhere from $1,000 to $3,000 per person. Lawyers charge for their time to work with you and review the document. Depending on your circumstances, this can take a short or a long time.

As an example, Agreeable offers separation agreements for $350, using an automated online interview to gather relevant information and provide you with a draft of your bespoke separation agreement. Once you have the draft agreement in hand, both you and your ex-partner will need to get independent legal advice and certification from lawyers. Agreeable can sort this for you, and it usually costs between $850 and $2,000 per person, depending on the complexity of your agreement (i.e. the type and value of assets you have included).

What is the first thing to do in a separation? (answered in the guide, but maybe a summary would be good)

Ensure that you and any children in the relationship are safe. If there is a danger to anyone’s safety, you should consider applying for a Protection Order through the Courts. This guide can offer more information.
If you are likely to be safe during the separation, the next step should be to ensure there is a parenting plan for any children in the relationship. This guide has further details.
If you are both safe and sorted on the parenting front (or don’t have children in the relationship), you should consider getting a separation agreement. This generally begins with a discussion with your spouse/partner about your assets.

Is my spouse/partner entitled to half my savings?

This will always depend on the circumstances of the relationship. Still, by default, the law divides any assets attained during the relationship as relationship property, including income and your bank account. Therefore, it is possible that without a separation agreement, your spouse/partner will be entitled to half of your savings.

Our guide to Separation Agreements, thanks to our friends at Agreeable

MoneyHub proudly partners with Agreeable, which offers a service to build you a personalised separation agreement online. Agreeable also offer online certification for your agreement, where you get expert legal advice and your signature witnessed, at a fixed price and without leaving home.
We believe the Agreeable service offers a faster, easier, and cheaper process compared to the traditional law firm approach.
You can learn more about their separation agreement service here.

Important: When should I contact a lawyer about a separation?

Visit Agreeable

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