If you and your spouse have decided to separate, you might be wondering how to handle the legal aspects of divorce. Here’s a straightforward guide to help you through the process of applying for a divorce, or more accurately, the dissolution of your marriage, in New Zealand.

Eligibility to apply

  • To make the application in New Zealand, one person must be “domiciled” in New Zealand. Domiciled means that the person primarily or permanently resides in New Zealand.
  • Section 39 of the Family Proceedings Act 1980 provides that you must have been living apart for at least two years preceding the date the application is made.  “Living apart” does not necessarily mean that you are living in different houses, but more living separate lives.  If there is a record of the agreement to separate (including an oral agreement), this could be provided to the court as evidence that you have been living apart for 2 years.

The application form

Choose an application type

  • You can make the application as a single party application or a joint party application.
  • In a single party application:
    • You would draft all the information from your view;
    • Once filed and processed by the Court, you will need to arrange for the other party to be “served”. This means that you get someone to give them copies of the documents filed in Court, so they are aware of the application. If we are assisting you, we would usually organise service on your behalf.
    • Once service has been effected, you need to provide an affidavit to the Court confirming this.
    • The person served will have a set timeframe from the date they are served to reply to the Court if they wish to object to the divorce. The person will usually need to show the Court that they have not been separated for more than two years before the application was made.
    • If the application is not challenged, the Court will decide if the order can be made. Once made, there is usually a one month stand down period before the order becomes final.
    • If the application is challenged, the Court will decide the next steps.
  • In a joint party application:
    • You will both complete the forms. You do not need to be in each other’s presence to do this, but usually you need to share the same copy of the forms.
    • Once filed in Court, the Court will generally make the order. As above, there will usually be a stand down period before the order comes into effect.
  • A joint party application is generally more time and cost effective as there are less steps to be taken by you and the Court.

Complete the application

  • The form for the dissolution of your marriage can be found on the Ministry of Justice website. If you have engaged a lawyer to complete the application for you, your lawyer will draft the application for you.
  • You need to file an:
    • application form – which briefly sets out the grounds for making the application.
    • Affidavit – which provides the evidence supporting your application; and
    • information sheet – which lets the Court know where documents should be sent for both parties.
  • You must provide:
    • your marriage certificate.
      • This needs to be an actual certificate and not your “particulars of marriage”.
      • Depending on your country of marriage, you can usually order the certificate online from Births, Deaths and Marriages.
      • If we are assisting you with the application, we can order the certificate for you.
    • evidence, if any, of the agreement to separate.  
      • It is important to confirm the date that you separated.
      • In most cases, you and your spouse would have reached a “separation agreement” through your lawyers. This agreement would confirm things like when you separated, if there are outstanding issues between you and your spouse, and how property is divided.
      • Where there is no written agreement or a “separation agreement”, you would complete the form on the basis that you have reached an oral agreement to separate.
    • confirmation of any childcare arrangements.
      • While there is no requirement for childcare matters to be resolved before the order can be made, you must confirm that you have turned your mind to how the care of your children will work. If you are still discussing care arrangements, this should be noted in both the application form and the affidavit.
      • The childcare information you put in the application form and the affidavit does not mean that the arrangements are final. You and your spouse can still reach different arrangements following the application.

File the application

  • The Court filing fee is currently $233 and is payable at the time of filing the application.
  • If we are assisting you with the application, we will file the application for you.
  • If you are doing the application without a lawyer, you can file the application by:
    • Using the “File and Pay” service through the Ministry of Justice website;
    • Delivering the documents and making payment at your local Family or District Court; or
    • posting the documents to the address on the Ministry of Justice form.

What if my spouse lives overseas or I don’t know how to reach them?

  • As long as one person to the marriage is primarily living in New Zealand, the application can be made in New Zealand.
  • There are many ways for service to be completed.
  • In some circumstances, you can ask the Court for assistance with service on the other party (including asking the other party to agree that service may be done by email or other means). 
  • If the other party cannot be served by the documents being handed to them personally and they do not agree to being served in another way such as email, you must apply to the court for orders allowing service to be effected other than by personal service (Substituted Service).  To obtain an order allowing Substituted Service, you will usually need to show the Court that you have current (at least from the last six months) details for the other person.  For example, this could be evidence that they have used their email address recently.  If we assist you with the application, we can draft the required documents for you.

What is the effect of the order for divorce?

  • There are several effects of the order, but the main ones are:
    • There is a set period for any relationship property claims. This is usually one year from the date that the order is made. There are some exceptions to this, including if a separation agreement has already been signed.
    • your Will will be read as if your spouse died before you. We therefore suggest updating your Will to match your new intentions, as any previous provisions relating to your spouse would fail. You can still leave an inheritance to your former spouse after you divorce, but your Will must be updated for these gifts to be effective.

Is there any way to sidestep the “two year” criteria?

  • “Ashley’s Bill” was recently passed to allow people with a final protection order in place to immediately apply for a divorce.
  • For more information on getting a protection order, read our article on “How to get a protection order”.

Next steps

If you would like to discuss applying for a divorce or if you need to update your Will, contact me or another member of Lewis Lawyers’ Dispute Resolution team.