How to separate from your partner


The author has been practicing law for over 30 years, this article is written with a cynical but blunt twist. If you feel that you may take offence when reading then please stop reading now. However, if you are of a more robust character please continue and learn from one's first hand experience.

What you need to know before separating

OK we can’t make these painless (and advocating alcohol would be plain irresponsible), however we can give some sensible advice;

  • Lawyers have a duty to advocate reconciliation and can point you in the direction of Counsellor’s (free up to a point) to help with this.
  • The process of separating is almost invariably going to cost you, but the amount it is up to you.
  • The law does not care who is at fault and nor should you. Lawyers make far more money out of those determined to prove guilt, to allocate responsibility or to extract vengeance then ever they do from those prepared to put it down to a bad experience and to get on with life. Argue over principles if you want, just remember these don’t come for free. 
  • The Law Commission has recently released the a new issue paper on the division of relationship property, this is not the law. 

Need legal advice?


Have you separated permanently?

If you and your partner have agreed that you want to end your relationship. Try and agree between yourselves the "big picture" items:

  • Who has the children and when.
  • Who gets the dogs.
  • Who gets the assets (including life insurance policies and superannuantion schemes).
  • Who is reponsible for paying short and long term maintenance. (I.e mortgage, rates, insurances, debt, childcare etc.)
  • Who stays in the family home.
  • When the arrangement "kicks in".  

Other things to consider

  • Consider if your Will is still appropriate and whether or not you should immediately be making changes to that – most times you should. 
  • Consider if your Enduring Power of Attorney is still appropriate. 
  • Make sure the bank agrees that the old joint mortgage cannot be used as security for any new borrowing by either partner.
  • Remember here that unless and until such time as new arrangements are made, then you are both responsible for meeting all obligations secured under your mortgage, which will include any facilities either of you have or may open in the future, whether with or without the others consent or even knowledge! 
  • Revisit any guarantees given notice of the cancellation thereof and/or seek indemnities from your ex under your separation agreement. 
  • If you are involved in partnerships and/or companies with your ex relationship partner, check that any loans between entities are dealt with and recorded as repaid, shares are fully paid up and transferred, and directorships (which carry their own risk) are resigned from.
  • Revisit ALL insurances to check they are put into the right names and they are still relevant to your circumstances.  

Be mature - remember the property is equal until an agreement is reached

Remember joint assets are just that, joint and they remain so until a settlement is reached and final ownership passes to one or the other of you. Until then neither has any greater right to the use and/or to have the occupation thereof, than the other. I had one situation whereby our clients ex relationship partner moved the new boyfriend into the relationship home and insisted on using our client’s, (who was by that stage sleeping in a different bedroom), ensuite each morning!

Oh yeah, and beware the curtain rail. Another of the firm’s clients ex relationship partner found it funny to put sardines in the curtain rails before shifting out! Another good one is a cough lozenger in the shower rose head or disinfectant in the septic tank. Hopefully most people will be more mature than this, but it cannot always be guaranteed.  

Should I get legal advice?

Always, always, always, always, always, and yes always, find out what your legal rights are. Even you are the only one in 50 billion squidillion, famillion (I have no idea at all if these are actual words!) of couples separating that are going to be perfectly civilised about it and you are parting as BFF (my eight year old daughter once told me this means Best Friends Forever), or it was you that shagged the neighbour and you feel like pooh (and I don’t mean as in Winnie), you owe it to yourself to find out what your rights are. Whether or not you actually enforce those is over to you, but at least you will have made an informed decision. This is especially true if you are being victimised, dominated or made the subject of an abusive relationship (and here I am speaking as much to guys as to females, as husband bashing is very much alive and well in New Zealand – albeit one that because of male pride, does not get as much attention as it deserves). You owe it to yourself and any children you have to make an informed decision about what your current and future entitlements are.

Try and get clarity on all relevant issues and give your solicitors clear instructions so that they can prepare a property relationship agreement recording your separation and the agreement reached. Both of you will need separate advice on the agreement, but at least if you can agree the terms of the “big picture” in advance, then the additional cost incurred in having that thrashed out by your lawyers will be avoided. Do “NOT” try and do this yourself. Agreements entered into without each party having separate legal advice and solicitors certificates to this effect, are completely worthless and open to being revisited by either party at any time. This is a false economy and one that invites major problems (aka expense) later on.

Need legal advice?

Please note this article does not constitute legal advice and may be outdated.