Do I need to get a divorce to divide relationship property?

by | 4 Feb 2023 | Family, Litigation

When people contact me and tell me they want to get a divorce, the first thing I ask them is what is the objective they want to achieve. The reason for this question is that formally dissolving your marriage might not be what you need to do at this moment.

There are usually 3 main objectives people may have:
1. Divide relationship property,
2. Obtain day-to-day care of the children, or
3. Getting ready to marry another person.

The only reason you must formally dissolve your marriage is if you want to marry another person. In New Zealand, it is a crime to be married to two people at the same time. Therefore, if you want to enter into a new marriage, you can’t do so until you have formally dissolved your prior marriage. In order to get a divorce, you must first separate from your spouse for at least 2 years before you can apply to dissolve your marriage at the Family Court.

However, if your primary objective is to divide relationship property or to obtain day-to-day care of your children, then you do not need to wait until you get a divorce. You are able to deal with relationship property or parenting arrangement matters as soon as you separate from your spouse. Please note you can separate from your spouse without having to formally dissolve your marriage.

Therefore, if your main goal is to divide relationship property, then what you need is to enter into a relationship property division agreement with your spouse (also known as a section 21A contracting out agreement).

Alternatively, if your main goal is to sort out the day-to-day care of your children, then what you need is to enter into a parenting arrangement agreement with your spouse with respect to the care of your children.

In short, is it not necessary to immediately get a divorce if you simply wish to divide relationship property or to finalise the best arrangement for the care of your children.

If you have any questions about New Zealand family law, speak to us at Capstone Law, and we will be happy to assist you.

Kenneth Sun

Kenneth Sun

Partner & CEO

Kenneth is the founding partner of Capstone Law.  Kenneth has a MPhil from the University of Cambridge, and he was also awarded the prestigious Dean’s Academic Achievement Award for graduating from the University of Auckland law school in the top 5% of his class. Kenneth has worked at some of the best law firms in the country before starting Capstone Law.


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