How to obtain a dissolution of a NZ marriage or civil union

Introduction

To obtain a dissolution of a New Zealand marriage or civil union, you apply to the Family Court. You don't need a lawyer to do this.

The application forms are available from the court. You can also download copies of some of the necessary forms from the Family Court website at www.justice.govt.nz/family, under Legislation & legal resources / Forms.

The FAMILY PROCEEDINGS ACT 1980 introduced the new term "dissolution of marriage" to replace "divorce". It also established a "no fault" regime, which means that a dissolution can be obtained without one spouse having to be shown to be "at fault" in some way. Civil unions, which were introduced on 26 April 2005 by the CIVIL UNION ACT 2004, are dissolved by the same process as marriages.

The grounds on which the court will make a dissolution order

The only ground on which an order for dissolution of a marriage or civil union is granted is "irreconcilable breakdown", which is established only by you having lived apart for two years. Therefore, when you have been separated for two years you can apply to the Family Court for a dissolution order.

The Family Court judge or Registrar dealing with the application is required to grant you a dissolution order if satisfied that -

• you and your spouse or partner have been separated for two years, and
• appropriate arrangements have been made for the care of any children of the relationship

How do we prove that we have been living apart for two years?

It is sufficient if you state that you have been living apart for two years in the affidavit that accompanies your application for dissolution (see below). You do not need to have made a formal separation agreement with your spouse or partner to prove the period of separation.

Whether you and your spouse or partner make a separation agreement is entirely up to you (see How to enter into a formal separation agreement). If you have made a separation agreement or if the court has made a separation order (see How to obtain a separation order), you will need to include a copy of the agreement or order with your application (see below).

The issue of whether a couple have been separated for the necessary two years may be more complicated in some cases than others. In particular cases the parties may have fulfilled this requirement even though they have been living in the same house; this is because the courts look to see whether their conduct shows a commitment to living together as a couple, and it may be that the parties effectively lived separate lives despite living in the same house.

There may also have been a period of reconciliation during the two-year separation. In that case the two-year separation period will still be established if the total period of reconciliation was not more than three months.

What if my spouse or partner doesn't want the dissolution?

If the grounds for a dissolution exist (see above) but your spouse or partner doesn't want the dissolution, you can make a "single application" by yourself (see below) and the court must make the order. In this case the procedure is more complicated than if you make a "joint application" with your spouse (see below).

Will I have to pay a fee?

Yes, there is a fee for applying for a dissolution. For details of the fee, contact the Family Court. If you are applying on your own there may be an additional cost for having the documents served on your spouse or partner (see below).

Applications made by both spouses or partners (joint applications)

If you and your spouse or partner are applying together for a dissolution order, you will need to file an application form with the Family Court. Your application form must be accompanied by an affidavit that states that you have been living apart for two or more years and that arrangements have been made for your children, including day-to-day care and maintenance (or that there is a good reason why no arrangements have been made).

You must also attach to your affidavit the original or a certified copy of the certificate of your marriage or civil union.

For copies of the relevant forms, contact your local Family Court.

Applications made by one spouse or partner alone (single applications)

You will need to make a single application if your spouse doesn't agree to the application, or if you don't know where he or she is. Your application form must be accompanied by an affidavit that states that you have been living apart for two or more years and that arrangements have been made for your children, including day-to-day care and maintenance (or that there is a good reason why no arrangements have been made).

You must also attach to your affidavit the original or a certified copy of the certificate of your marriage or civil union.

After you've filed the single application, you will need to get someone to serve a copy of the application on your spouse or partner - you cannot serve it yourself. After your spouse has been served, you must then file the following documents with the court -

• an Affidavit of Service, signed by the person who served the copy of the application on your spouse or partner, and
• an Acknowledgement of Service, signed by your spouse or partner

Your spouse or partner then has 21 days in which to respond and make clear if he or she intends to oppose the application.

Will there be a hearing in front of a judge?

In most cases dissolution orders are granted by the Family Court Registrar without there having to be a hearing before a Family Court judge, and therefore without you having to appear in court.

In the case of a joint application the Registrar can make the order without you having to appear if you both indicated on the application form that you agree to this.

If you've made a single application, the Registrar can make the order in the parties' absence if you have consented to this on your application form, and your spouse doesn't oppose the application and doesn't want to be heard by a judge.

How long does it take for the order to take effect?

Dissolution orders do not take effect until one month after they are made, except in those cases where the matter goes before a Family Court judge even though neither party opposes the order being made (called "undefended proceedings"). In undefended proceedings, the order takes effect immediately.

Both parties will receive a copy of the order.

When can I marry or enter into a civil union again?

You are free to marry or enter into a civil union as soon as the dissolution order has taken effect. You may apply for a Marriage Licence or Civil Union Licence on the day on which the dissolution order is granted, but the licence is not available for three days.

Mediation and counselling

The Family Court process emphasises mediation and counselling. If you wish, six hours of free, confidential counselling may be arranged by the court.

The counselling may be helpful in enabling you to reach an amicable agreement on issues such as care of the children and who is to live in the family home.

Counselling is available not only to married and civil union couples, but also to de facto couples who are having difficulties in their relationship.

Cautionary notes

• You should obtain independent legal advice to assist you to reach formal agreements with your spouse or partner about care arrangements for your children (see How to apply for a parenting order for day-to-day care (custody) of a child) and the division of matrimonial and relationship property (see How to enter into a property agreement) and How to: The division of property when a marriage, civil union or de facto relationship ends).
• Legal aid is not available to obtain a dissolution order, but it is available for disputes to do with relationship property, child support, spousal maintenance, and day-to-day care of or contact with children (parenting orders). For information on legal aid, see How to obtain civil legal aid.