A Separation Agreement outlines how spouses divide assets and responsibilities as they end their relationship. It’s a legally binding document that covers arrangements for property division, spousal maintenance, and child care. Use our template to record these terms between you and your spouse. 

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.

Couples in de facto relationships, meaning couples who live together on a genuine domestic basis without being married, can also use a Separation Agreement if they split up.

Separation Agreements are also known as:

• De facto separation agreement
• Legal separation
• Marriage separation agreement
• Separation form
• Civil partner separation agreement

A separation agreement allows you to settle similar matters as you would in a divorce, like property division and child custody arrangement. However, the marriage does not officially end. When separated, couples live apart and pursue separate lives. It’s often a step toward divorce, but spouses can also choose to reconcile, using the separation to work out any issues in their relationship.

Different forms of separation exist, each with varying degrees of time, cost, court involvement, and legal finality.

1. Informal separation

An informal separation is a verbal agreement between you and your spouse. It’s not a legally binding separation and probably can’t be enforced should either party break the agreement. 

2. Formal separation outside of court

A formal separation outside of court means you and your partner create and sign a Separation Agreement. The contract is legally binding as long as both parties receive independent legal advice and the document follows certain provisions.

Creating a Separation Agreement outside of court is also known as a do-it-yourself separation. As long as you and your spouse can agree on the key issues of your separation, you don’t have to involve the courts.
 
If either party breaks the agreement, it will most likely be upheld in court as long as its terms are reasonable and fair.

3. Formal separation by court order

If you and your spouse can’t agree on the circumstances of your separation, you can apply for a separation order from the Family Court. This court order finalises your separation agreement, making it legally enforceable.

In most circumstances, court orders are final. Once the court has decided, it’s difficult to change their decision.

Separation lets couples live separately without ending the marriage. While separated, you can’t remarry, but you retain the benefits of the marriage, such as health insurance and tax benefits.

On the other hand, a divorce legally ends the marriage. Once divorced, spouses can get remarried if they wish to do so. Divorcing also ends any benefits of the marriage, like health insurance and tax benefits.

In New Zealand, couples must have separated for at least two years to divorce.

Spouses should use a Separation Agreement when they agree on the key issues of their separation. If you and your spouse disagree, have intense animosity towards one another, and can’t work together, attempt mediation or apply to the family court for a separation order instead.

If your separation deals with shared property, you’re legally required to record your agreement about property in writing, for example by using a Separation Agreement. You must also get independent legal advice and have the lawyer witness your signing of the contract.

Use LawDepot’s template for separations involving simple and straightforward assets. Our easy-to-use questionnaire guides you through creating a custom Separation Agreement.

Anyone can separate from their partner when the relationship has broken down. If you are in a legally recognized 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)

Yes, you and your spouse can separate while living together. This arrangement is known as in-house separation or separation under one roof. 

If you want to separate while living together, you must disengage from the relationship. In your daily life, this can look like:

• Changing sleeping arrangements (i.e., moving rooms, sleeping separately)
• Reducing shared activities or family outings (i.e., fewer family vacations, not attending social events together)
• Performing household duties separately (i.e., having separate meals, doing your own chores)
• Dividing finances (i.e., creating separate bank accounts, paying your own bills)

When involved in an in-house separation, creating a proper Separation Agreement is especially important. If you and your spouse are going to apply for a court order or end up divorcing, the Family Court will ask for proof that you were legitimately separated while living together. Your Separation Agreement and an Affidavit can help provide this.

A Separation Agreement touches most facets of your relationship. The document contents will vary depending on your relationship. For example, having kids, owning property, and sharing finances can influence the contents.

Child custody, access, and visitation

When separating, you and your partner must consider the best interest of your child or children. Many couples choose to co-parent, splitting the responsibilities equally or semi-equally. However, every family is different. Make the decisions that suit your children and your relationship with your spouse.

You can negotiate your parenting arrangements and finalise them with a Separation Agreement, or apply to the Family Court for a parenting order. When making parenting arrangements, you and your partner should discuss:

• How you’ll split custody for everyday and holidays
• Who will have decision-making authority for the children
• How the children will spend time with relatives or other significant people in their life
• How you will divide responsibilities for school and extra-curricular activities

Separation can be a tumultuous time for your child, and your main goal should be to create a safe and stable environment. If you can’t agree on the parenting arrangements, you can ask the Family Court to decide. However, before you can pursue a court-ordered solution, you must usually follow a prescribed process and attempt to resolve the situation with your spouse.

Typically, you must first complete a course about parenting through separation. If this doesn’t help resolve the issue, you and your partner should attempt family dispute resolution mediation. After these steps, if you still cannot agree on the terms of child custody, you can apply to the family court for a custody order.

Spousal maintenance

Spousal maintenance is a form of financial support paid from one spouse to the other after a separation or divorce. Also known as spousal support or alimony, it applies when one spouse requires financial assistance after separation or divorce to meet their reasonable needs until they can achieve financial independence.

Maintenance payments depend on factors like income disparity, length of the marriage, and each spouse's financial needs and contributions. You and your spouse can decide on the need for spousal maintenance in a Separation Agreement, or you can apply to the Family Court for a maintenance order.

If you require spousal maintenance and cannot agree on it with your spouse, you should apply for a maintenance order soon after the relationship ends. Spouses are expected to assume responsibility for their own finances in a reasonable time, and the length of time between the end of the relationship and when you apply for spousal maintenance may impact the court's assessment of your financial independence.

Child support

Child support is a payment arrangement between divorced or separated parents to help with the cost of raising children. The partner who is primarily responsible for the children will often receive financial support from their spouse or ex-spouse.

When making decisions about child support, you should think about:

• Which parent will have the main financial responsibilities for your children
• What expenses should be covered
• Which parent will provide the children with health insurance
• Whether children in college or university will be covered under the child support

Inland Revenue (Te Tari Taake) is the government agency in charge of child support. They encourage couples to negotiate and solve their own child support agreements. You and your partner can choose to address child support payments in one of three ways:

1. Private agreement 

A private agreement means you and your partner agree on child support amounts together and pay it directly to each other. You can use a Separation Agreement to record your decisions and make them legally binding.

2. Voluntary agreement

A voluntary agreement lets you and your spouse settle on child support payments among yourselves. Once you agree on the amounts and create a Separation Agreement, you register your agreement on child support with Inland Revenue. The agency then takes responsibility for deducting and transferring the payment.

3. Formula assessment

A formula assessment means Inland Revenue assesses your situation and sets a child support amount. The agency then takes responsibility for deducting and transferring the payment.

Relationship property

Property settlement is an important part of the separation. When you create your Separation Agreement, you and your partner decide what happens to your personal belongings, assets, and debts after the separation.

Relationship property includes any property or asset that you gained during the relationship. It’s different from separate property, which is owned individually. Things that must be divided between you and your partner include:

• Real estate (i.e., vacation 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, stocks and bonds, trusts, etc.)
• Business assets (i.e., sole proprietorship, shares in partnerships, etc.)
• Debts (i.e., mortgage, student loans, car loans, etc.)

How you divide your assets depends on your circumstances. In most cases, separating spouses retain their separate property and divide their relationship property. 

To get started on dividing your assets, you can follow these steps:

1. Create a list of all your assets. Consider your vehicles, personal items, and any real estate that isn’t your matrimonial home.
2. Appraise the value of your assets. For more significant assets like real estate, you can do this yourself or seek an expert opinion.
3. Decide the division of property. Determine whether certain assets have a logical owner. You may want to consider exchanging larger items for several smaller items and vice versa.

You can also apply to the Family Court for a Relationship Property Order. As a part of this process, you and your spouse must fully disclose your individual financial circumstances. Once the court has evaluated the assets, it will create an order that divides them between you fairly. 

The general rule of New Zealand law is to divide relationship property equally between partners. However, this can vary depending on your individual circumstances and the length of the relationship. For example:

• For relationships of three years or more, the relationship property is generally divided equally.
• For relationships of less than three years, the relationship property is often divided based on what each partner brought into the relationship.

Note that there’s a time limit to apply for property settlement after separation. You must apply to the Family Court for property or financial orders within:

• One year of divorce for married couples
• Three years of separation for de facto relationships

Separation is a complex legal issue, and family law is hard to navigate. While you can write your own Separation Agreement, you must follow certain provisions for it to be legally binding. For example, you and your spouse must both receive independent legal advice before signing the document.

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

To create your custom Separation Agreement, use LawDepot’s handy questionnaire-based template. Simply answer a few questions, and you can download your document in as little as five to ten minutes.

1. Personal details

Start by adding some basic personal details. Mention if you have any dependent children and name your home state. Add the names and addresses of yourself and your partner, and describe when and where your marriage or de facto relationship started.

2. Children and child support

Next, if you have children with your partner, add personal details for the child or children, such as their names and dates of birth. 

Divide the child custody rights and outline the schedule for access. Decide which party will pay child support, and set an amount and schedule.

3. Spousal maintenance

If either party will receive spousal maintenance, name the receiving party. Describe how often payments will be made, how much they will be, and when they will end.

4. Family home

The family home is the residence you share with your spouse. If you or your spouse own the property, include the address and what you plan to do with it. You can choose to transfer ownership to one party, or you can sell it and split the sales proceeds.

5. Finances

Continue by detailing both parties’ income and dividing your assets. You can mention if you or your partner are keeping any specific items. Also, specify if you are selling any items and splitting the proceeds.

If necessary, you can also specify who will be responsible for any debts.

6. Additional details

Finally, include any additional details that aren’t already covered by the agreement.

You and your spouse both have certain rights when you separate. Because New Zealand has no-fault separation, it doesn’t matter which party is responsible for the separation taking place. Whether you create your own Separation Agreement or apply to the court for a separation order, these are basic entitlements afforded to you. 

1. You have the right to stay in your home. If neither party wants to leave the family home, you can separate under one roof.
2. You have the right to leave the home without losing it as an asset. Even if you don’t own the property, the determining factor of who gets to stay in the family home often comes down to the needs of each party. 
3. You have the right to an equitable share of the relationship property. If you have been with your spouse or partner for three or more years, you generally have the right to 50 per cent of all relationship property.
4. You have the right to see your children again. Unless the family court makes an order that states otherwise, you’ll be a part of your children’s lives.

Technically, you can divorce in New Zealand without a Separation Agreement. However, most couples must remain separated for at least two years before filing for divorce. This requirement proves that the marriage has irretrievably broken down.

When you apply for a dissolution order, the Family Court will ask if you and your ex-partner have separated for the required time. A Separation Agreement helps prove and confirm the length of your separation if anyone disputes the separation date.

Yes, a Separation Agreement is a legally binding contract. Both you and your spouse are bound by its terms. However, provisions within the Property (Relationships) Act of 1976 outline some requirements your document must follow if it deals with shared property.

When you create and sign your Separation Agreement, you have to make sure that:

• The agreement is a written document
• You and your spouse both receive separate, independent legal advice before signing
• Both parties’ signatures are witnessed by a lawyer
• Both parties’ attorneys certify that they explained the effect and implications of the agreement to you

You also need to make sure that your agreement is fair to both parties. 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 certain assets or liabilities
• The agreement is plainly unfair (e.g., one of your waives your right to support without compensation)

If your spouse breaks the Separation Agreement after signing it, you may enforce the terms like one would with any other contract. This can include legal actions, like seeking monetary damages in court. You will have to prove that the other party breached the agreement, and it can be a good idea to seek legal help from a lawyer.

In New Zealand, you must receive separate and independent legal advice before signing a Separation Agreement. 

You and your spouse will separately review the agreement with your lawyers, who will explain the effects and implications of the agreement. They will also certify that you received their advice and that you understand what you’re signing.

When you and your spouse sign the document, the lawyers who provided independent legal advice must be present as witnesses.