Do I need a separation agreement?

If you have been together with your partner, spouse or civil union partner for more than three years and separate, you will need a separation agreement to record the division of your property.

If you have been together less than three years, but own property together, we also strongly recommend that you have a separation agreement completed.

After three years together the equal sharing provisions in the Property (Relationships) Act 1976 (Act) come into effect in relation to all relationship property which then has to be divided in accordance with the Act.

In reaching agreement about the division of your relationship property, you and your partner will need to disclose to each other all property that either of you own and any other property that you have an interest in and the value of that property.  That includes the family home, family chattels (including vehicles, boats, caravans and pets), all bank accounts, kiwisaver or superannuation accounts, company shares, other investments, livestock and debts. This disclosure is required so that you both have a complete picture of the property that is being divided and can assess whether that property is relationship property or separate property.

You and your partner are both required to have independent legal advice on a separation agreement, so that you both understand your legal entitlements and what claims you may have.

Your lawyer will discuss with you whether the property owned is separate property or relationship property, whether there are any post separation contributions by either of you that need to be addressed, whether compensation for economic disparity or spousal maintenance is relevant in your circumstances and any other claims that may be relevant in your circumstances.

An agreement reached between you and your partner but not recorded in writing or signed without you both receiving independent legal advice on the agreement does not comply with the requirements of the Act and unless the Court specifically says so, it would not be binding separation agreement*.

If you do not complete a separation agreement that meets the requirements of the Act, either of you may be able make a claim against the other in the future.

Note that if a claim is made more than three years after the end of de facto relationship, or one year after the dissolution of your marriage or civil union, the person wanting to make a claim for the division of relationship property will need permission of the court to take a claim. A person is not completely prevented from making a claim after those times, it is just more difficult.

*The Family Court has the power to declare an agreement that does not met the requirements of the Act a valid separation agreement, if doing so does not materially prejudice the interests any party to the agreement.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.