The first installment of my article “We’ve Split Up. Now What?” covered how property is divided in a separation. Part 2 below discusses parenting in separation and what you should know to protect your assets before entering a new relationship.
What to do about the kids
Sorting out childcare arrangements can be overwhelming and frustrating- especially when you’re used to seeing your little humans every day and now don’t know if you’ll even get to spend the summer holidays with them.
Parenting negotiations should be kept separate to negotiating your relationship property division. Every decision about your children’s care should be in line with your child’s best interests (and not what may give you the upper hand).
Talking about parenting matters in front of the little ones is a big no no. While it may be tempting to say a cheeky remark about how the other parent might not be pulling their weight, those comments tend to find their way to the other parent and can become mountains out of molehills. Your child might also feel like they are the only reason that “terrible” person is in your life- adding unnecessary stress to an already unsettling time.
A key aspect in working through parenting matters- no matter how much you may dislike one another- is keeping positive in front of the children and encouraging ongoing relationships with both parents.
Your 16-year-old (or older) wouldn’t usually be a part of any parenting arrangement. At 16 years old, your child is thought to be mature enough to make decisions on their own care and welfare, with a bit of guidance from their parents. There are exceptions to this- such as if your child has high needs.
Step 1: Come up with the arrangements
When you are ready to start talking about childcare arrangements with the children’s other parent, consider a format that keeps the children out of it at first. Maybe arrange a play date for the children and plan to meet the other parent at a cafe. Otherwise, this can be done in writing by text or email.
From there, get an idea of your plans by asking “what arrangements:
- give my child/children the safest and most stable living environment?”
- focus on me and the other parent being responsible for our child/children’s care, development, and upbringing?” You both- as parents- should be doing the parenting with support from close friends and family.
- promote my child/ children’s identity by strengthening cultural, religious, and family connections?” Keeping the kids in the same school (where possible), having them treat Nan in the same way as before the separation, and letting them keep up Kapa Haka or Scouts can go a long way to promoting a happy and stable environment post separation.
Be practical in your arrangements and remember that children’s interests change so be ready to adapt with your children.
Step two: Get your child’s thoughts
Before you finalise any arrangement, you should get your child/children’s views. Getting your child’s view (where possible) is not only required by the principles in law- but also lets your child feel like they have some say over the decisions that directly impact them.
This may not seem possible with the younger children- but this could be as simple as recognising that your child really does not enjoy having Aunty Sue as their babysitter and seeing if there is anyone else that your child is more comfortable with. As your child grows, the way they have their say may also change. You should be open to listening to their views and adapting as things go.
Once both parents and their child/children are happy with the arrangements, record the arrangements in writing and ensure both parents have a copy.
Step three: Do we have to go to Court?
Once you have reached a parenting agreement, we suggest the parenting agreement is made into an “Order by Consent” so that the agreement can be enforced in the same way as any other Court order. This isn’t strictly necessary but can add an extra layer of protection if needed. An Order by Consent doesn’t usually require formal Court proceedings and usually just looks at the agreement reached between parents.
If you have any serious safety or wellbeing concerns for your children, you may need to apply to the Family Court for a parenting and/or protection order. We suggest contacting a lawyer urgently to discuss your options.
If you and your partner are unable to mutually agree on parenting arrangements, it may also be necessary to apply to the Family Court to have these issues decided.
What else do I need to know?
As parents, you are both entitled to make decisions and have information about your children. This includes everything from the schools they attend, the children’s religious practices and what town the children live in- but you must keep the above principles in mind.
We suggest that any parenting agreement covers as many decisions or preferences as possible to avoid disputes along the way.
Parenting agreements should be reviewed regularly to ensure that the agreement is practical in the circumstances. We suggest reviewing the agreement about every two years or if there are significant changes in the arrangements (for example, if a parent moves to a different town).
The safest way to approach parenting following separation is to assume every choice you make about your child needs to be agreed by the other parent before the choice is confirmed.
Regardless of how old your kids are, it’s always a good idea to attend a “Parenting through Separation” course and/or try communication counselling.
What should I know for my next relationship?
Before starting a new relationship, you may want to think about protecting your assets for the future.
Can’t I just set up a trust to protect my property?
Yes, if you are single with no hint of a relationship with anyone in sight. However, we would also encourage you to get a contracting out/pre-nuptial agreement signed when you do enter a relationship (see below).
If you are “seeing someone” or in a “friends with benefits” situation that could potentially lead to a relationship (no matter how unlikely), the simple answer is no.
If you are in a casual relationship with someone and pre-emptively set up a trust for the purpose of protecting assets, there is a risk that the trust could be challenged. Click here for further information on the Supreme Court’s decision that made trust-busting a little easier.
Contracting Out Agreements
The Property (Relationships) Act 1976 (Act) allows parties in a relationship to agree to the division of property while still together. This is like a “pre- nup”, but you don’t need to be married (or even thinking about it) and you don’t necessarily need to be in a long-term relationship. Entering a contracting out agreement early in your relationship can prevent issues when things end by separation or death.
Your contracting out agreement must be fair and reasonable in the circumstances and you’ll each need to get independent advice on the agreement for it to be valid.
What’s the issue with death and my relationship?
- Option A- the survivor elects for the usual presumptions of the Act to apply (if there is a valid contracting out agreement, that agreement will then apply); or
- Option B- the survivor elects to follow the Will of the deceased (if there is no Will, the rules of intestacy will then apply).
Under Option A and B, we are looking at the extent of the deceased’s estate. There is typically an assessment of both options to determine which would be in the survivor’s best interest.
As set out in Part 1 of this article, a “qualifying relationship” under the Act depends on how long you have been in the relationship, the intentions of both parties during the relationship and if there are children (including stepchildren) of the relationship.
Where to from here?
Should you need advice about a separation, parenting or property protection matter, the Family and Dispute Resolution team at Lewis Lawyers are experts at guiding you through the process to achieve your goals as efficiently as possible.
