Grounds for divorce
In order to apply for a dissolution order, in usual circumstances, you and your spouse or civil union partner must have been living apart for at least two years immediately before you file the application. This is because New Zealand currently operates a “no fault” divorce system and the only requirement to obtain a dissolution order is irreconcilable differences. Living apart for two years is evidence of such a break down in your marriage or civil union. No further proof is required and there is no way to speed up this time period – even if you both want to.
However, recent law changes mean that parties who have been subjected to family violence may be able to dissolve their marriage sooner.
Living arrangements
One common issue that arises is where parties have separated but are still living under the same roof. The courts have recognised instances where parties have mentally and physically stopped “living together”, despite still residing under the same roof. In those circumstances, the parties will need to demonstrate they have maintained separate lives despite still living in the same property.
Another common issue that arises is reconciliation of the parties and the impact of this on the two year time period. The consensus is that if parties reconcile for a period of less than three months in total, the two year time period continues.
What if my estranged partner or I are not living in New Zealand?
To make the application for dissolution, at least one person needs to be domiciled in New Zealand – but it is not necessary that you were married here. “Domiciled” means the country that you treat as your permanent home, not necessarily where you are currently living. This means that you may still be able to apply for a dissolution in New Zealand if you are living in another country, so long as your spouse or civil union partner (or you, yourself) is domiciled in New Zealand.
It is unlikely that you will need to appear in court in relation to an application for dissolution. The only reason for this would be if either of you defended the application on the basis that you have not met the required two year separation time period.
Application process
The most common types of applications for dissolution within New Zealand are joint applications. This is because the only thing that needs to be proven for an application to be made is that the parties have been living apart for two years, and most often the parties agree when this is the case. A relationship property settlement agreement (section 21A agreement) that records the date of separation can assist with proving this point if there is any disagreement.
If one party is unwilling to sign a joint application, the other party must file a one party application which comprises the application as well as an affidavit to accompany the application. This must be personally served on the other party by someone other than the party applying for the dissolution i.e., a process server. That person will need to file an affidavit of service to prove that the other party has been given the application. Personal service can sometimes be difficult, particularly if the other party resides overseas or their precise whereabouts is unknown. In these cases, the party applying will need to make a without notice interlocutory application for substituted service and an affidavit accompanying this. Examples of substituted service include serving the documents via social media, email, in a newspaper or via post or courier.
Once the other party is served, they will have 21 days to oppose the application (if in New Zealand). These timeframes are extended to 30 days and 50 days respectively if the other party lives in Australia or anywhere else in the world. However, the only grounds to defend a dissolution of marriage application are if one party does not agree that the parties have been separated for at least two years. The party being served can request an appearance on the application, but must file and serve on the other party an application to do so.
If the other party does not oppose the application the Court will generally make the order (provided that the conditions above are met) without the need for a Court appearance. Usually, one month after a dissolution order is made, it will be made final and sent to both parties.
Conclusion
If you require assistance with completing the paperwork or would like any further information or advice relating to applying to dissolve your marriage or civil union, BCH Law would be happy to assist.
By Michelle Carey | Solicitor | 07 571 7008 | michelle@bchlaw.co.nz
The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter.
