Bill's Law - Divorce - 10 May
This week Bill answers a viewer question on divorce.
Q: I've been separated from my husband for 6 months and have a new relationship. My new partner and I want to marry as soon as we can but I've been told I have to wait two years. Is this right if both my husband and I agree to the divorce?
A: In New Zealand all that people seeking a divorce need to prove is that their relationship has broken down "irreconcilably" and that they have lived apart for two years. There is no need to prove fault or to blame either side for the breakdown. It also won't make any difference if the couple both agree on the divorce, under NZ law they still need to have been living apart for two years.
Q: How do they prove that they've been apart for two years?
A: Anyone applying for a divorce needs to provide an affidavit
(ie. sworn written evidence) that they have lived apart for two
years. That is sufficient evidence for the Court to make an
Where the couple has already made a separation agreement or has a separation order from the Court, then that would also need to be included with the evidence to provide corroboration of the date of separation.
Q: How do you go about applying for a divorce?
A: There are two ways that an application can be made to the
Court. Where both parties agree and are contact with each other,
the easiest way to proceed is to file a "joint application" which
is signed by both husband and wife. Attached to the application is
their affidavit confirming that the marriage has broken down
irreconcilably and that they have been living apart for two years.
A copy of their marriage certificate must be attached to the
affidavit. The couple will also need to prove that arrangements for
the maintenance and welfare of any of their children under 16 has
been adequately provided for.
The application is filed at the Family Court at a cost of $175 and the couple will be divorced once the Judge makes the order for dissolution (if the Registrar makes the order the divorce takes effect one month from the date the order is made).
Q: What about if only one party to the marriage wants the divorce?
A: The second way that an application can be made is by one party alone. A "unilateral" application is made by one spouse ("the applicant") and costs the same (ie $175). The application must be personally "served" on the other spouse. (ie. physically given to them). Once an affidavit of service is provided to the Family Court the order can be made by the Registrar. There is a time period of once month within which the other party can file a notice opposing the order. The other spouse could stop the order being made if they prove the couple has not lived apart for the required two years. In a defended hearing the order takes effect one month after it is made (ie that gives time for an appeal to be lodged in the High Court).
Q: What does "living apart" mean?
A: Generally the parties will have had to have been physically separated (ie living in different houses) to meet this test. Even then there might be a problem if one party thought they were still together (eg. one party went overseas for work and the other thought the marriage was still on). In some cases the parties may still be in the same house but are living apart (eg. no sexual relationship, financially independent, don't present as a couple) but this is very unusual.
Q: What happens if you can't find your estranged husband or wife. Can you still get a divorce?
A: If one party can't be personally served, the applicant will
need to apply to the Court for "directions" for service. They can
suggest to the court an alternative, (eg. notice in the newspaper,
service on a relative) which the judge will consider. The judge
will want to know that the applicant has made a reasonable effort
to try and locate their spouse (eg. through relatives, friends, the
electoral roll, employers etc. etc)
An application for directions can be an expensive and time consuming exercise so a real effort should be made to try and locate the other spouse before considering this option.
Q: What about getting a marriage "annulled". When can that happen?
A: This only happens when the applicant can prove that there was
some fundamental defect in the marriage which renders it void (eg.
there was no consent, the parties were close relatives).
Where parties agreed to the marriage and had the legal capacity to do so, it is unlikely that they will be able to get their marriage annulled.
More Information on dissolution of marriage (Divorce) can be found on the Courts website at www.courts.govt.nz/family