Separation and divorce are never easy subjects to discuss nor easy experiences to go through. Because of this, many people delay gathering the information they need to make clear, confident decisions. One common point of confusion is the difference between separation and divorce. While they’re related, they are not the same. Below is a clear overview to help you understand the distinction.

What are the main differences between separation and divorce?

Separation comes before divorce – a couple must agree to separate before they can get a divorce. Once a couple has been separated for at least two years, they can then choose to apply for a divorce.

Separation doesn’t have to be legally formalised – A couple can separate simply by agreeing to do so. While a formalised separation (usually via a separation agreement) can make the process smoother and provide clarity, it’s not a requirement for separation. Meanwhile, a divorce requires a formal declaration from the Family Court, officially called a Dissolution Order.

Divorced couples are no longer married – If a married couple separates, they remain legally married until a divorce is finalised, even if they have a written separation agreement or court order. Once a divorce is granted, the marriage is legally ended and cannot be reversed.

Non-married couples can separate – Couples who were not married or in a civil union can still formally separate, and many choose to do so through a separation agreement. This is especially common for de facto relationships (generally couples who have lived together for at least three years). Divorce, however, applies only to marriages and civil unions.
Separation gives you time to reconsider & decide on relationship property – Separation provides time to reflect and to make decisions about dividing relationship property. It is generally not advisable to apply for divorce before resolving property division. After a divorce is finalised, couples usually have only 12 months to reach their own agreement about dividing relationship property. After that, the default equal-sharing rules may apply.

How does separation work?

A couple is generally considered separated when they are no longer living together as a couple and at least one person intends the separation to be permanent. Separation can even apply where the couple is still under the same roof, and intends to be in a separation. Any couple can enter a separation without any official action or legal requirement, but there are options to formalise it.

Separation can be formalised in one of two ways:

• A separation agreement
• A separation order from the Family Court

A separation agreement is used in almost all cases for formalising a separation, as well as preparing for a divorce, and you can find more information about Separation Agreements here. Separation orders are uncommon, and only where one of the couple doesn’t want to separate. You can apply for a separation order from the Family Court.

How are finances and property treated?

At the outset of separation, financial obligations generally remain as they were during the relationship. Any changes such as adjustments to debt repayments or shared expenses must be agreed between the parties.

A separation agreement is often the clearest way to document these arrangements. Without an agreement, the law generally provides for relationship property to be divided equally (50–50).

When applying for divorce, having a separation agreement can simplify the process by clearly establishing the separation date and confirming that property matters have been addressed. While a divorce can proceed without an agreement, the couple must reach their own property agreement within 12 months of the divorce if they wish to avoid the default equal-sharing rules.

What about our children?

If you and your partner separate, you will need to agree on who has “day-to-day care” of the children and other important decisions. This can be done informally, but we recommend writing up a parenting plan, to clarify and set out the arrangement for looking after the children. There is also a free & popular course called Parenting Through Separation that offers practical advice on this. For a divorce to be finalised, the court will have to be satisfied with the arrangements for day-to-day care and the welfare of the children. Even after a divorce, both parents maintain guardianship of any children born or adopted in the course of the relationship. Guardianship is a legal right to help with decisions around the child’s wellbeing and upbringing.

Why should we formalise things?

Failing to formalise your separation either through a separation agreement or divorce can create uncertainty and increase the risk of future disputes. Without a clear agreement, unresolved property claims or disagreements can lead to greater financial loss and additional stress later on.

Obtaining a properly drafted separation agreement, along with independent legal advice and certification, provides certainty, protection, and peace of mind.

How to get a divorce in NZ

To obtain a divorce in New Zealand, you must apply for a Dissolution Order through the Family Court.

The requirements are:

• You have been separated for at least two years; and
• At least one party is domiciled in New Zealand (meaning they live in New Zealand indefinitely, or were born in New Zealand and are living overseas temporarily).

Either one or both parties can apply. The process is generally straightforward, and further information is available on the Ministry of Justice website.

There is also an excellent guide to divorce in New Zealand on MoneyHub, check it out here.

How can Agreeable help?

Separation is already emotionally challenging. The thought of involving lawyers and the uncertainty around cost and time can add further stress. Agreeable was founded to provide strong legal agreements and independent legal advice with as little stress as possible.

• You can purchase a separation agreement (click here). The software will lead you step-by-step through creating your own agreement. At the end of a short questionnaire, you’ll be emailed your draft agreement as a Word document.
• Once completed, our team works with you to ensure the agreement is comprehensive and properly prepared
• Then, apply for certification with us, and we will arrange two independent lawyers (one for each of you) to certify your agreement (make it legally binding). Best of all, we’ll give you a fixed quote so you know the cost before you commit.