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Marriage, Civil Unions & De Facto

Marriage, civil unions & de facto

Marriage, civil unions and de facto relationships are legal ways of describing different types of legal relationships that are more formal than that of a girlfriend/boyfriend relationship. If you are in a marriage or civil union or have been in a de facto relationship for more than three years, nearly everything either of you owns becomes relationship property.

When can I get engaged?

Engagement isn’t a legally recognised status. That means you can get engaged to anyone at any age.

When can I get married?

You can get married if you’re at least 18, or 16-17 with your parents’ permission. In New Zealand, you can choose to marry someone of a different sex or the same sex.

What do I legally need to do before getting married?

First, you need to fill out a Notice of Intended Marriage form and send it to the Registrar of Births, Deaths and Marriages at the Department of Internal Affairs. (There is a fee). You will need to tell the Registrar when and where you’re going to get married and who is going to perform the marriage ceremony. You will need a marriage celebrant or a registry office.

You have to prove that you’re at least 18, or at least 16 with your parent’s/parents’ permission. You also have to prove that you’re not related to each other. The Registrar will then issue you a marriage licence in at least 3 days. Your marriage celebrant will need the licence and 2 copies of the Copy of Particulars to marry you.

What do I need to do during the marriage ceremony?

In the marriage ceremony, you have to say that you agree to take the other person as your husband or wife, in front of a marriage celebrant and at least 2 witnesses. You and your new spouse, the celebrant and 2 witnesses have to sign the marriage licence. Although some women change their last name to their husband’s when they get married, there is no requirement to do so.

What is my responsibility if I want to marry someone who needs support?

If you’re married to someone who needs support, you have to look after them. It’s your responsibility to pay for their living costs if they can’t afford it. There are also lots of consequences for what happens to your property if you break up or if one of you dies.

What’s the difference between marriage and civil union?

In New Zealand, it used to be common for same-sex couples to be in a civil union as same-sex couples used to not be able to get married. However same-sex marriage became legal in August 2013 so many same-sex couples have since chosen to be in a marriage instead.

A civil union has almost the same effect as a marriage, except that you aren’t allowed to adopt a child as a couple. Either you or your civil union partner could adopt as an individual, though.
You can change your marriage to a civil union, or your civil union to a marriage, by filling out a form at the Department of Internal Affairs and paying a fee.

What’s a de facto relationship?

You’re in a de facto relationship if you’re in a relationship with someone and living together as a couple, but aren’t married or in a civil union with them. Whether or not you’re ‘living together as a couple’ depends on lots of factors, including your living arrangement, sexual relationship, whether you have children, how much you share your money, household chores, and other factors. You can start a de facto relationship by moving in with someone if you’re at least 16.

If you’re in a de facto relationship for a long time, it could be treated like a marriage when it comes to separation and relationship property.

When can I move in with someone?

Generally, unless your parents agree, you cannot move in with someone until you turn 16.

If you want to move in with someone, the Ministry for Children – Oranga Tamariki could become involved if your parents or the police think you’re not safe in the place you’re living at and you’re under 17. They could send you home to live with your parents or send you somewhere else where they think you’ll be safe. It’s unusual for MCOT to become involved for someone who is 16, but possible.

  • You should make sure you have made appropriate arrangements to leave home before moving out.

When does my de facto relationship get treated like a marriage?

If you’ve been in a de facto relationship with the same person for at least 3 years, then the law treats you almost like you’re married. If you separate, there may be relationship property issues. Sometimes the law will treat you like this even if you haven’t been together for 3 years, for example, if you have children together.
Note the main legal difference marriage and a long-term de facto relationship is that you can’t adopt a child as a de facto couple.

How do I end a de facto relationship?

To end a de facto relationship, you just stop living together as a couple. Usually, this happens when one of you moves out. It’s also possible to stop ‘living together as a couple’ if you both stay in the same house but live in different rooms and live your lives independently of each other.

In a long-term de facto relationship, the break up can become quite messy because there may need to be a separation of relationship property and decisions need to be made regarding the custody of children if there are any.

What is separation?

If you’re married or in a civil union and your relationship with each other ends legally, this is called ‘separation’, which can eventually lead to a divorce if you decide to continue down this route. A separation is when you decide to stop living with each other and go through the formal process of ending your marriage.

Even when you’re separated, you’re still legally married. This means you can’t marry or enter into a civil union with anyone else until you’ve gone through the formal legal process to end the relationship through a divorce.

I want a divorce immediately, how can I get one right now?

If you’re married or in a civil union, you can’t get divorced straight away, there is a formal process you will need to go through before you can get a divorce. You will first need to go through a separation period where you are separated for 2 years before you can officially file for a divorce.

How do I prove separation at the court?

You don’t have to do anything official when you separate with your partner, however, it is best to enter into a separation agreement or a separation order to make things clear. A separation agreement should include what should happen to the property and the children in the relationship. This is the easiest way to prove separation and 2 years from the date of entering into a separation agreement, you can apply for dissolution.

How do I officially end a marriage or civil union?

To formally end a marriage or civil union, you need to get a dissolution order (the legal name for a divorce) from the Family Court. You have to fill out an application form, pay a fee and include with the application a certified copy of your marriage or civil union certificate.

The application has to say that your relationship has completely broken down. You have to prove this by living apart from each other for at least two years. (You can live together for a total of 3 months during this time if you’ve been trying to fix your relationship.) This means it takes at least two years after you separate with your partner before you can actually officially end the relationship.

You can make a joint application together or you can apply alone, but the process will be more difficult if you apply alone and your partner disagrees with you.

If you’re on a low income you might be able to get a fee waiver when applying for dissolution. You can contact the Family Court for more information.

Do I have to pay and support my ex-partner once we’re separated?

In certain circumstances, you may be required to financially support your ex-partner for a temporary time period, if the ex-partner is unable to support themselves. This is called maintenance. Generally, it is expected that after the temporary period, that each person should be responsible for maintaining themselves financially.

You can come to a voluntary maintenance agreement between yourselves. If you are unable to come to an agreement on this issue, your ex-partner might apply to the Family Court for a maintenance order. If the Family Court agrees to grant the maintenance order, you may have to pay financial support to your ex-partner.

This payment is separate from child support and relationship property.

 

What is relationship property?

Relationship property, which is governed by the Property (Relationships) Act 1979, is property that must be divided between the two people when their official legal relationship comes to an end. This may include:

  • Family home & chattels (aka personal property like furniture, a shared family car).
  • Any property purchased by either partner before the relationship that was intended for the use by both people.
  • Property owned jointly or in equal shares by both people.
  • Income that was earned during the relationship.
  • Joint debts.
  • Insurance taken on by the spouses/ partners relationship property.
  • Gifts / inheritance which has been mixed with property that is now shared (e.g. using inheritance money to purchase a TV for the household).
  • Property that was purchased during the relationship.
  • Increases in the value of relationship property.

What is not relationship property?

Separate property is all property that is not relationship property; it generally stays with the person who owns it. It is property kept separate from the relationship during the marriage, civil union or de facto relationship.

Examples of this are:

  • Property bought by either spouse or partner while they were not living together.
  • Income that is earned from separate property.
  • Any increase in the value of separate property.
  • Family heirlooms.
  • Gifts and inherited property, unless it has been mixed with relationship property.

How do we decide on the division of the property?

The division of property can be decided between you and your ex-partner. If you are finding it difficult to agree on the division of the property, you can then apply to the Family Court for a decision. The Court in most circumstances will order the property to be divided equally between the two ex-partners.

There are exceptions as it would be unfair to economically disadvantage one of the parties if their place in the relationship was not as financially stable as they earned less income, were stay at home parent or has medical issues. This would be taken into account when applying to the Family Court for a decision.

For more information on relationship property, please click here.

I am separating with my partner. We have children together, who gets the children after we separate?

Generally, both parents are still guardians of the children and responsible for their upbringing. Both parents generally get some sort of custody rights (right to have the child live with you), or at least access rights (right to have the child visit you or you visit them).

If you can both agree on who will look after the children, then that can be the agreement. It is best to have it written out and consented to by the Family Court. You can download the Ministry of Justice’s “Making a parenting plan” booklet, which can help you record an informal agreement.

If you need help filling out the form, contact YouthLaw or your local community law centre.

Sometimes you may not agree though, which means further steps will have to be taken.

My ex and I don’t agree on who looks after the children after we separate, what happens then?

If you can’t agree, then you will both need to take a “parenting through separation” course and go through with a family dispute resolution to try to resolve the problem together.

If you still can’t agree after that, then the case can be put before the Family Court, and the judge will decide who will get custody of the children. In most cases, the judge will give both parents shared custody if both parents want custody, where one parent might have the children during weekdays, and the other during the weekends or every fortnight weekend. However, this depends largely on the circumstances of the family after the separation.

In terms of custody, what does day-to-day care mean when looking after children?

The term “day-to-day” care means the daily looking after of the children. Generally, parents either get day-to-day care or contact arrangements which mean the right to visit the children or for the children to visit you.

When making decisions on who should get the day-to-day care and for how many days a week, it’s important to put your child’s needs first. It’s generally not a good idea to decide to have the child one day each as that could highly disrupt a child’s schedule and may mean difficulties with getting to school and attending extra-curricular activities. Involve your children in the discussion where it is possible.

My ex wants to take our child overseas, can they do that without my permission?

If you still have day-to-day care or contact arrangements with your child, your ex cannot take your child overseas unless you agree to it.
If you think your ex is taking your child overseas without your permission, you can ask the Family Court or a higher Court for an Order Preventing Removal.
You’ll need a lawyer for this, and you may be able to get legal aid for it.

If you know that your child will be taken out of the country very soon, you will need to let your lawyer know and tell them how urgent it is so they can ask for an emergency hearing if it is necessary.

You should start this process as soon as possible, as it will be harder to ask them to return once they’re out of the country.

If the Order is granted, the Court may:

  • Place the child with a suitable person until the case can be dealt with,
  • Order that the child’s passport be handed over to the authorities,
  • Order that the other parent hand over their travel documents.

You can also ask for a border alert which alerts Customs officers and stops the child from leaving the country.

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