Last Updated March 11, 2024
What is a Separation Agreement?
A Separation Agreement is a legally binding contract that spouses use to divide assets and outline obligations when separating or preparing for divorce. To enter into a Separation Agreement, both spouses must agree and consent to the terms of their separation.
Generally, the terms of a Separation Agreement outline how spouses will manage their assets, debts, and children during the separation. By using a Separation Agreement template, spouses can formalise their separation and protect each of their interests.
When should I use a Separation Agreement?
Use a Separation Agreement if you and your spouse agree on the terms of your separation and want to avoid litigation. If you don’t agree, you may have to pursue separation in New Zealand’s family court. However, creating a Separation Agreement without the involvement of the court is often cheaper and less stressful.
In New Zealand, creating a Separation Agreement on your own is an alternative to a separation order, which the family court administers. A separation order legally declares that you separated on a specific date, but doesn’t include information about the care of your children or division of relationship property.
If you and your spouse decide to separate, you must try to resolve child custody arrangements yourselves. If you can’t reach an agreement, you must follow a prescribed process before you can pursue a court-ordered solution. First, you must complete a course about parenting through separation, then you have to try mediation. If you still cannot agree on the terms of child custody after taking these steps, you can apply to the family court to make a custody order.
How do I write a Separation Agreement?
Generally, a Separation Agreement includes information regarding:
- Child care: Specify if one parent has the primary right to decide matters of health, education, and welfare of a child or if both parents share responsibility.
- Child : If the child or children live primarily with one parent, outline the details of the child maintenance payments that the other parent will provide.
- Spousal maintenance: Specify if either spouse will receive spousal maintenance payments once separated. If so, outline the amount and schedule.
- Possession of the family home: Decide if one spouse will hold temporary possession of the family home. Alternatively, you may agree to transfer the property title to one spouse or sell the house and divide the proceeds. Some spouses may continue to both live in the family home despite separating.
- Income: Outline both spouses’ employment and non-employment income.
- Property distribution: List the property items that either spouse will retain as their own and the common property that will be sold for cash and divided.
- Division of debts: List the debts that each party will be solely responsible for, such as credit card debts, car loans, and personal loans.
To compile all of this information into one simple document, use our Separation Agreement template.
Can spouses live in the same house and still be separated?
Yes, spouses can separate while still living together. Spouses may continue living in the same home for many reasons, such as:
- Needing time to find a place of their own
- Lacking the finances to live alone
- Maintaining children’s home environment
If you’re still living together when creating your Separation Agreement, you can enter the same address for both parties. If a dispute about your separation ever arises, you can use your Separation Agreement and an affidavit (a written statement in which a person lists facts they swear are true) to prove you were legitimately separated while sharing a home. In the affidavit, you should provide:
- The reasons why you chose an in-home separation and if you have any intentions of changing the situation
- The details of your physical separation (e.g. divided sleeping arrangements, meal times, household chores, etc.)
- The details of your financial separation (e.g. separating assets, bank accounts, debts, etc.)
What if a spouse breaches the Separation Agreement?
If a spouse breaches a Separation Agreement, the other spouse may enforce the terms like one would with any other contract. A spouse can sue or seek monetary damages in court by proving the other party breached the agreement.
Is a Separation Agreement legally binding?
Yes, when executed properly, a Separation Agreement is legally binding. In New Zealand, if the agreement covers how property will be divided, you and your spouse each need to receive independent legal advice in order to create a legally binding document. When separating spouses each sign their Separation Agreement with their lawyer, the document becomes enforceable.
However, a court may not recognise the document if you don’t sign it properly. In addition, courts may not recognise a Separation Agreement if:
- The terms of the agreement are not in the best interest of the spouses’ children.
- Either spouse doesn’t disclose certain assets or liabilities within the document.
- The agreement is plainly unfair (e.g., one spouse waives their right to support without compensation).
Do I need a lawyer for my Separation Agreement?
Yes, if your Separation Agreement covers how you will divide property, both parties must separately review the agreement with their lawyer before signing. Each lawyer will explain the effects and implications of the agreement and witness their client sign the agreement.
