What is a Separation Agreement?

A Separation Agreement is a binding document outlining how spouses divide assets and responsibilities as they end their relationship, without fully dissolving the marriage. It covers arrangements such as property division, spousal maintenance, and child care.

Some spouses split up temporarily and eventually reconcile, while others do so indefinitely. In many cases, spouses separate as a step toward divorce and submit a Separation Agreement to the family court to prove their separation. 

Separation Agreements are also known as:

• Marriage separation agreement
• De facto separation agreement
• Civil partner separation agreement
• Separation forms

LawDepot’s Separation Agreement template is customisable for couples in New Zealand.

When should I use a Separation Agreement?

You should use a Separation Agreement when you and your spouse agree on key issues of your separation. 

Anyone can separate from their partner when the relationship has broken down. If you’re in a legally recognised relationship, you can use a Separation Agreement to formalise the separation. This includes people who are:

• Legally married
• In a civil union
• In a de facto relationship (i.e., you live together as a couple without being married)

If you and your spouse disagree or can’t work together, you should attempt mediation, seek legal guidance, or apply to the Family Court for a separation order instead.

If your separation deals with property or debt that belongs to you, your spouse, or both of you, your agreement must be in writing and signed by both you and your spouse. You both must also get independent legal advice and have the lawyer witness you sign the agreement.

Separation vs. divorce in New Zealand: What’s the difference?

Separations and divorces both end a relationship. However, their legal status varies.

Separation allows couples to live apart without ending the marriage. This can be on a trial basis or legally separated with a court order. While separated, you can’t remarry, but you retain the benefits of the marriage, such as health insurance and tax benefits, while pursuing separate lives.

Separation is often a step toward divorce, but you and your spouse can also choose to reconcile after working out any issues during your separation.

A divorce legally ends the marriage. Once divorced, you can get remarried if you wish to do so. Divorcing also ends any benefits of the marriage, like health insurance. 

In most divorce cases in New Zealand, you must have been separated for at least two years before you can divorce.

What should I include in a Separation Agreement?

A Separation Agreement includes key information and terms regarding your separation that both you and your spouse agree upon, including:

Shared and separate assets

Shared assets, also known as relationship property, are assets you gained during the relationship. This includes:

• Real estate (i.e., holiday homes, rental properties, land, etc.)
• Household items and personal belongings (i.e., motor vehicles, furniture, electronics, jewellery, etc.)
• Financial assets (i.e., bank accounts, superannuation, shares and bonds, trusts, etc.)
• Business assets (i.e., sole trader business, shares in partnerships, etc.)

How you divide your assets depends on your circumstances. In most cases, separating spouses retain their separate property and divide their relationship property. In your Separation Agreement, you can document how you’re dividing shared property.

Shared and separate debts

Shared debts, also known as relationship debts, are liabilities incurred jointly during a relationship (e.g., mortgages or car loans). Debts that don’t fall under relationship debt are classified as separate (personal) debt, and the liability is on the spouse who legally owns it.

In your Separation Agreement, you can determine each spouse’s responsibility for outstanding shared debts.

Child custody, visitation, and support

When separating, you and your spouse can discuss and agree on the care for any children you may have. You can negotiate your parenting arrangement and child support with a Separation Agreement. Then, you can apply to the Family Court to turn your parenting arrangements into a court order if you wish to do so.

Spousal maintenance

Spousal maintenance (also known as spousal support or alimony) is a form of financial support paid by one spouse to the other after separation. You can include any spousal support in your agreement to document the amount and payment schedule.

Are Separation Agreements legally binding?

Yes, Separation Agreements can be legally binding if drafted and executed correctly. 

To be valid, agreements between spouses must comply with the key rules set out in the Property (Relationships) Act 1976. This includes:

• The agreement must be in writing and signed by both spouses
• Each spouse must have independent legal advice before signing the agreement
• The signature of each spouse must be witnessed by a lawyer
• The lawyer who witnesses a spouse's signature must certify that, before it was signed, the lawyer explained the effect and implications of the agreement

Independent legal advice helps ensure that your agreement is fair to both spouses. In the event of a legal dispute, the courts may not recognise the agreement if:

• The terms of the agreement are not in the best interest of your children
• You or your partner don’t disclose all your assets and liabilities
• The agreement is plainly unfair (e.g., one of you waives your right to support without compensation)

Can I write my own Separation Agreement in New Zealand?

Yes, you can write your own Separation Agreement in New Zealand. However, you must follow certain steps for it to be binding. For example, you and your spouse must both receive independent legal advice before signing the document.

You can use LawDepot’s Separation Agreement template to create your custom contract. Our documents are customised for the New Zealand Family Proceedings Act 1980 and the Property (Relationship) Act 1976.

How to make a Separation Agreement

You can use LawDepot’s user-friendly Separation Agreement template to create your document in minutes. Simply complete the following steps once you’ve selected whether you and your spouse have children or not:

1. Provide your and your spouse’s names and addresses
2. Select your relationship type (i.e., marriage, de facto, or civil union) and provide relationship details (e.g., marriage date and location)
3. Add separation details (e.g., if you’re living separately and the date you started living apart)
4. Name dependent children and document care details (e.g., sole or joint care, contact with other parent, and child support)
5. Specify any spousal maintenance payments and scheduling, if applicable
6. State if you have a family home and what you will do with it
7. List any assets each spouse is entitled to
8. Name any debts each spouse will be responsible for
9. Select a signing date

Reminder: Each spouse must receive independent legal advice prior to signing their agreement, and it must be witnessed by a lawyer.

What are the types of separation in New Zealand?

In New Zealand, there are three kinds of separations. Each type varies in terms of time, cost, court involvement, and legal finality.

1. Informal separation: A verbal agreement between spouses that isn’t legally binding and is harder to enforce.
2. Formal separation outside of court: An agreement made without the help of the court, using a Separation Agreement that follows the rules for a contract. Also known as a do-it-yourself separation. If either spouse breaches the agreement, the agreement may be enforceable in court.
3. Formal separation by court: Spouses apply for a separation order, and the court makes an order that you and your spouse are separated as of a certain date. A separation order does not cover child care or the division of relationship property. 

Court-ordered separations are final, and it can be more difficult to change a judge’s decision. However, if a couple can agree on the terms of a Separation Agreement, they can revisit those terms if circumstances change and both spouses mutually agree to amend their contract.

Separation Agreement FAQs