Myth-Busting Family Law

There are a lot of misconceptions in family law. We do not know where the ‘u’ of family law come from, but we often hear it being repeated by our family, friends and clients. Recently we have even seen people providing unsolicited advice to each other on community Facebook pages with incorrect information on family law and what people should do after they separate.

It is concerning to us as family lawyers hearing and reading mistruths which are being shared. During a separation, friends, family (and random people on community social media pages) can provide a good place for you to feel supported and comforted but this does not mean they have the correct answers when it comes to your legal rights. Often friends and family will provide advice based on their own experiences (or the newest episode of Judge Judy they have watched) what this does not account for is how the law will apply to your own individual circumstances.

Below we have set out some of the common misconceptions we hear, to set the record straight:

1.       The care of your children is automatically 50/50 when you separate.

• This is not true. There is no presumption of equal sharing of your children when you separate.

• The paramount consideration in the Care of Children Act 2004 when making any decisions about the care of children is the child’s welfare and best interests.

• What is in the particular child’s welfare and best interests will change depending on different circumstances.

2.       You share all assets equally when you have been in a relationship with someone for 2 years.

• This is not true.

• The Property (Relationships) Act 1976 applies to marriages, civil unions or de facto relationships of 3 or more years.

• A de facto relationship is a specific legal term given its meaning in section 2D of the Property (Relationships) Act 1976, the meaning comes down to whether you “live together as a couple.” This does not mean you have to live together to be a de facto couple. In fact, to determine whether you live together as a couple the following factors are considered (although this is not an exhaustive list of considerations and none of them are regarded as necessary):

  • The duration of the relationship.

  • The nature and extent of a common residence.

  • Whether or not a sexual relationship exists.

  • The degree of financial dependence.

  • The ownership, use and acquisition of property.

  • The degree of mutual commitment to a shared life.

  • The care and support of children.

  • The performance of household duties.

  • The reputation and public aspects of the relationship.

3.      My partner/spouse cheated on me and caused the separation so I should get more from our relationship property pool.

This is not true. New Zealand has a no-fault system, and the courts in New Zealand do not take into account the behaviour of the other party in the breakdown of the relationship to determine how your assets should be shared.

4.      Me and my spouse have separated, the first thing we need to do is get a divorce.

This is not correct, and, in New Zealand you cannot apply to dissolve your marriage until you have been living apart for 2 or more years. One party must also be living in New Zealand at the date of applying to dissolve your marriage to be able to do this in New Zealand.

5.       My partner and I have an agreement on how to separate our property, so I just need a lawyer to sign the agreement.

• We often have enquiries from people asking for us to just “sign the agreement,” so that they can divide their assets with their ex-partner.

• While people are of course allowed to enter into whatever agreements they would like to, there are specific requirements on lawyers to make sure they meet to be able to create a legally binding and enforceable agreement, this includes that both parties have been provided with independent legal advice on the effects and implications of the agreement. This cannot be done in one appointment and requires lawyers to take certain steps to ensure our clients are properly advised.

The above are only a few of the misconceptions we hear– we are sure there is more out there.

If you are separating or have any questions about family law please get in touch so that we can assist you through the process.