If you are separating from a marriage or de facto relationship, or applying for divorce, you should consider entering into a Separation Agreement. Aside from going to Court, it is the only legally valid way to divide relationship property once a relationship ends.

While some couples attempt to divide their property informally, this can lead to disputes and costly Court proceedings later. Court processes can be expensive and time-consuming. If your relationship remains amicable, negotiating a Separation Agreement is often a more efficient and cost-effective solution.

A Separation Agreement allows you to decide how your assets and liabilities will be divided. If properly completed, it overrides the default provisions of the Property (Relationships) Act 1976.

To be legally binding, a Separation Agreement must meet the following requirements:

• The agreement must be in writing
• It is signed by both parties
• Each party must receive independent legal advice (from separate lawyers;
• Both lawyers must witness the signatures and certify that they have explained the effect and implications of the agreement to their respective clients.

What you can expect in our Separation Agreement ‘template’:

Our Agreeable separation agreement includes aspects such as:

• The relevant dates of the relationship (when you were married or started living together, when you separated);
• What will happen with the family home and any mortgage on it;
• What will happen with the chattels, furniture;
• Any bank accounts and what is to happen with those;
• Motor vehicles and who gets what;
• Kiwisaver and superannuation;
• Debts – who is liable for those;
• Any adjustments to be made or adjustment payments to make;
• Administrative clauses, such as the requirement to make complete disclosure and to execute any necessary documents;

We recommend ensuring that you have all the relevant information (most of the info above should apply to you) before purchasing the agreement. Then, in the certification stage (which you apply for after purchasing, completing, and receiving the agreement):

• Each party gets independent legal advice on the implications and effects of the Agreement;
• Costs – normally each party pays their own costs and shares the cost of the agreement and certification; and
• Witnessing by your lawyer via video signing technology

Things to include in your Separation Agreement

If you are married or in a civil union with your partner and you later decide to apply for a divorce, you can also use the separation agreement as evidence that you have been apart for 2 years. It is necessary to show that you’ve lived apart for two years before you can apply for a divorce.

Before you go ahead and purchase Agreeable’s Separation Agreement, here are some key things most couples think about when they get a separation agreement.

The Family Home

One of the main assets couples own is the home. Regardless of who paid for the Family Home, it will usually be relationship property.

When you separate, you can sell the main Family Home. The sale will be divided in half and shared between you and your partner. Otherwise, one party may keep the house and buy the other partner out. This might be desirable if you have children to consider.

In the Family Court (i.e if you don’t have a signed, binding separation agreement), the judge guides their decision by general principles. You might like to think about these principles when dividing your own relationship property:

• That since each partner has contributed equally to the relationship, the assets will be shared equally too i.e. split in half
• The Court won’t look at who is ‘at fault’ for breaking up the relationship
• Unpaid domestic work has equal value to economic work

Getting a separation agreement means that you don’t have to divide your assets in this way. If you are purchasing a separation agreement and then seeking your partner’s approval, you can show them that you have thought about fair terms.

What about Separate Property?

You and your partner may also have other assets which are not relationship property.

An example is other investment home(s) which are not the Family Home. This could be ‘separate property’ which does not come under the Relationship Property Act if it can be determined to not be relationship property. Separate property remains the property of the partner who owns it.

Situations can get complicated. For example, sometimes both partners own a home capable of becoming the family home. Generally, when relationship property is to be divided, the home of only one partner will be considered the main Family Home.

Separate property can include property one partner got while they were not living together as a couple. Or it can be property that a partner acquires from another such as an inheritance (unless this property gets mixed with relationship property). If you need legal advice on your individual circumstances, Agreeable can help you find Family Law experts.

Childcare Arrangements

If you have children who are still minors from your relationship, it is important to outline in a separate agreement the arrangements for their day-to-day care, contact, access, and any major decisions regarding their upbringing. Parenting plans are also common and helpful. The court will only be concerned only with what is in the best interests of the children when they consider child-care arrangements.

Your own or your partner’s debt

You or your partner can be liable for any personal debts (even if they are solely in your partner’s name) if they are considered relationship debts. Relationship debt includes any joint debts or debt that is solely in your partner’s name if:

• the debt was related to the relationship property. For example you used it to get a loan on a car you both used, or for a business you both benefited from;
• the debt was for the benefit of both partners. For example rent, debt to buy furniture;
• the debt is the result of the cost of bringing up any children you have together.

You can address how any joint debts will be divided, or whether one party will assume responsibility for certain debts and provide an indemnity to the other party who is not taking them on. Consider your current credit card debts, any outstanding hire purchases, student loans, and similar liabilities.

If there are not enough details in your separation agreement, your lawyer will request further information. We recommend taking some time to list these debts with your partner.

What about Kiwisaver?

If you have contributed to KiwiSaver after your relationship began, or to another employment-related scheme such as the Police Superannuation Scheme or another government scheme, you will generally need to share the portion accrued during the relationship with your partner when you separate. In most cases, this amount is divided equally. Your certifying lawyer will need to see proof of the value of your KiwiSaver, unless the amount involved is very small.

You may be able to withdraw funds from your KiwiSaver on the grounds of significant financial hardship or serious illness. Your KiwiSaver scheme manager must be reasonably satisfied that you or your partner are experiencing, or are likely to experience, significant financial hardship before approving such a withdrawal. Significant financial hardship can include serious financial difficulties that arise following a separation.

Finally, is your agreement fair?

If you do have to go to court, it is likely that the judge will determine whether:

• the agreement is fair;
• you both worked on the agreement without pressure and entered into it freely;
• it covers all your assets after full disclosure.

The extent to which a judge upholds your agreement will depend on how strongly they accept the three points outlined above. If one party breaches the Separation Agreement and the other applies to the court to enforce it, the judge may alter the terms of the agreement.

A separation agreement can be valuable in many ways. It provides certainty, helps ensure that separate property remains separate property, and perhaps most importantly can help both parties achieve closure.

Get your Separation Agreement with Agreeable

People are increasingly turning to online solutions to meet their everyday needs. Technology can make the process more efficient, convenient, and satisfying. Agreeable offers the following DIY services and steps to help you move forward:

• Purchase our agreement: Complete a short online questionnaire (approximately 10–30 minutes), and we will automatically generate a tailored agreement based on your responses.
• Apply for certification: Submit your agreement for certification with our team of experienced family lawyers.

Please note that if trusts or businesses are involved, your situation may be more complex and may likely increase the fixed fee at the certification stage. If this applies to you, feel free to speak with a member of the Agreeable team.

Disclaimer: Any information we provide is general information. Please do not rely on the contents of this article as legal advice. Agreeable is not a law firm or a substitute for a law firm.