If your relationship ends in a separation, you may agree to amicably go your separate ways and divide the property you own yourselves. However, even if this is the case, it is always a good idea to have the separation (and what you have agreed) recorded in a separation agreement.
A separation agreement will avoid the need of one party coming back and saying the division was unfair, which could lead to court proceedings which are costly and can be stressful on all parties involved. Once a separation agreement is signed, it is binding and can only be overturned by a court where exceptional circumstances exist.
This agreement will include information on the separation, like the date (which can later be used as proof of separation in the event you want a divorce), repayments of debts, division of bank accounts and household items or vehicles and any other matter deemed appropriate.
To formalise a separation agreement, both parties will need to take independent legal advice from a solicitor who will explain the agreement and sign that they have explained the details to you.
So while a separation agreement is, from a legal perspective, not necessary for a separation, it is always a good idea to get in touch to discuss whether one might be right for you.
Frequently Asked Questions
What is a separation agreement in New Zealand?
A separation agreement is a formal legal document that records how a couple has decided to divide their assets, property, and debts after a relationship ends. It serves as a clear record of your settlement, providing both parties with financial certainty and a clean break to move forward.
Is a separation agreement legally binding in NZ?
Yes, a separation agreement is legally binding as long as it complies with the Property (Relationships) Act 1976. To be enforceable, the agreement must be in writing and signed by both parties after each person has received independent legal advice from a different lawyer.
What should be included in a separation agreement?
The agreement should clearly detail the division of relationship property, including the family home, vehicles, bank accounts, KiwiSaver, and shared debts. It is also common to list separate property that each person will keep, as well as any specific arrangements for the ongoing care and support of children.
How long does it take to prepare a separation agreement?
The timeframe for completing an agreement depends on the complexity of your assets and how quickly both parties can reach a consensus on the terms. Once an agreement is reached, our team works efficiently to draft the document and coordinate with independent counsel.
Can a separation agreement be changed later?
While meant to be final, an agreement can be set aside by a court if it is found to cause serious injustice to one of the parties. However, because they are intended to provide finality, any subsequent changes usually require both parties to agree to a new formal deed or seek a court order.
What happens if I do not have a separation agreement in place?
Without a formal agreement, your assets are subject to the default "equal sharing" rules of the Property (Relationships) Act, which usually result in a 50/50 split regardless of individual contribution. This often leads to uncertainty, potential court battles, and significantly higher legal costs than with a certified agreement.
Can a separation agreement include child custody and support?
Yes, you can include provisions for your children's day-to-day care and any agreed-upon financial support or maintenance. Including these arrangements provides a stable framework for co-parenting and ensures both parties are clear on their responsibilities moving forward.
