Although the terms ‘separation’ and ‘divorce’ are often used interchangeably, there are several key differences between the two. Obtaining solid advice from an expert in relationship property law and matters can help you understand the differences and get started on a process. Find out more about separation vs divorce and what each situation entails.
A divorce relates to legally bringing a marriage to an end. A couple cannot get divorced in New Zealand unless they have been separated for a mandatory period of two years or more. (subject to limited exceptions).
Once you have been separated for two years or more, if one or both parties reside in New Zealand (or are “domiciled” in New Zealand), you must obtain a court order to dissolve the marriage.
A separation relates to the end of a relationship, whether it be a marriage or a de facto relationship. Separation is when a relationship ends, but it is unnecessary to do anything formal or official to end a relationship. It is, therefore, possible to be separated from your spouse but not be divorced, as you may not have passed the mandatory two-year period or obtained a Court order to dissolve the marriage.
There is no mandatory minimum time that needs to pass before the separation process commences. Therefore, if there are issues in relation to property division or children to be sorted out, you can progress these issues immediately upon separation notwithstanding the fact that you may not be divorced.
Date of Separation
Often it will be necessary to clarify the “date of separation”. This is the date at which the relationship ends (separate from the making of any divorce order). It may be the date on which a couple discusses the end of their relationship when they reach a mutual and informal agreement to separate. Other times, it may be the date on which one spouse or partner moves out of the home. The date of separation becomes relevant in the context of property division. Therefore, it is important to obtain legal advice about what your “date of separation” is deemed to be.
Many people think something more formal is required to confirm the date of separation, such as putting an agreement in writing. Unless there is likely to be a dispute about what the date of separation is, often it is not necessary at the outset to take any more formal steps to confirm the date of separation. It may sometimes be necessary to obtain a separation order =, but you should seek legal advice before deciding whether that is the right path. Property division can be formally recorded in a relationship property agreement, along with the agreed date of separation. This date can then be used as the starting point for the 2-year mandatory period for a divorce order.
Divorce Cannot be Reversed
A further key difference between separation vs divorce is that a divorce cannot be reversed. Once you are divorced, you would need to legally remarry if you wanted to be married to your spouse again (although it is open to you to return to the relationship or reconcile even after a divorce has been granted). A legal separation, on the other hand, leaves it open for reconciliation to occur without bringing the marriage to an end. It is important to be certain about your intentions surrounding the end of the relationship to ascertain when the right time is to commence the legal separation process or obtain a divorce.
Consult an Expert Relationship and Family Lawyer
The end of any relationship is a difficult period. That’s why you need an experienced divorce lawyer for the best advice on matters regarding separation vs divorce proceedings.
With over ten years of experience in the field, Sharon Chandra has helped many individuals with legal advice and has been named one of Auckland’s best five divorce lawyers. With specialist expertise in areas of property and family law, rest assured that you are in qualified hands. Reach out for legal help from Sharon Chandra.