How to obtain a NZ separation order

Introduction

If you separate from your spouse or civil union partner, you may decide to enter into a Separation Agreement (see How to enter into a formal separation agreement) or one party may apply for a separation order from the Family Court.

Neither of these are essential, but they may be helpful as evidence of the two-year separation period that is necessary for an order of dissolution of a marriage or civil union (see How to obtain a dissolution of marriage or civil union).

Separation and dissolution of marriages and civil unions are governed by the FAMILY PROCEEDINGS ACT 1980.

When is it appropriate to apply for a separation order?

Usually when a couple separate a formal separation order is not necessary. But if, for example, only one person wants a separation, he or she may wish to apply for an order.

How do I apply for a separation order?

Applications for separation orders are made to the Family Court. You will usually need the services of a lawyer to apply for the order. The application is heard before a Family Court judge.

Applications forms are available on the Family Court website

What are the grounds for making a separation order?

The judge must make a separation order if satisfied that there is such a state of disharmony between the parties to the marriage or civil union that it is unreasonable to require them to continue or resume cohabitation. (However, it is doubtful whether there could be any legal "requirement" to live together in any case.)

In deciding the issue the court looks at the character, personality, desires and emotions of the parties.

Counselling available through the Family Court

The Family Court emphasises the use of counselling and mediation services. When you apply for a separation order the Family Court Registrar must refer you and your spouse or partner to counselling, unless a Family Court judge decides otherwise (which usually happens if there has been any violence in the relationship).

Your counsellor will arrange with you a time and place for the counselling sessions. There may be up to six sessions. They are free and confidential.

Mediation conferences

A judge or one of the spouses or partners may ask the Registrar to arrange a mediation conference. The purpose of the mediation conference is to try to identify and clarify the matters at issue and to reach some agreement between the parties about –

• arrangements for the care of any dependent children
• who will live in the family home
• financial arrangements

Mediation conferences are held at the Family Court and are chaired by a Family Court judge. The conference is not a hearing and anything said in the conference cannot be used against either party in a later court hearing.

You may have a lawyer present at the mediation conference, but it is expected that the parties will speak for themselves rather than through their lawyers.

The judge can make orders on those issues the parties agree on at the conference – for example, on issues of day-to-day care of or contact with the children. These are called "consent orders" and are enforceable in the same way as a court order. The judge will not impose an order unless both parties agree.

Cautionary notes

• You should always seek independent legal advice when obtaining a separation order, especially as it would be desirable to have a lawyer familiar with your case when you divide the 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).