Separation Agreements in New Zealand
Your complete guide to creating a legally binding separation agreement. Understand your rights, protect your assets, and secure your future.
1. What is a Separation Agreement?
A separation agreement (also called a legal separation agreement or divorce separation agreement) is a legally binding contract between two people who have decided to end their relationship. It sets out how you'll divide your property, handle finances, and arrange care of any children.
Key Points About Separation Agreements
- • Legally binding when properly executed with independent legal advice
- • Can be created before, during, or after formal divorce proceedings
- • Covers property division, spousal maintenance, and parenting arrangements
- • Known as a "Contracting Out Agreement" under NZ law
- • Must comply with the Property (Relationships) Act 1976
Why Do You Need a Separation Agreement?
Without a separation agreement, the default rules under New Zealand's Property (Relationships) Act 1976 apply. While these rules aim to be fair, they may not reflect your specific circumstances or wishes. A separation agreement allows you to:
- Protect your assets: Clearly define what each person keeps
- Avoid court disputes: Settle matters privately and save on legal costs
- Create certainty: Both parties know exactly where they stand
- Customize arrangements: Tailor the agreement to your unique situation
- Protect children: Establish clear, stable arrangements for children
Important Note
A separation agreement is different from a divorce. You can be legally separated and have a binding separation agreement without being divorced. Divorce in New Zealand requires a 2-year separation period.
2. Types of Separation Agreements in NZ
In New Zealand, there are several types of agreements you can use when separating. Understanding the differences helps you choose the right one for your situation.
Contracting Out Agreement (Section 21)
The most common type of separation agreement in NZ. Allows couples to "contract out" of the Property (Relationships) Act 1976 and create their own rules for property division.
- • Requires independent legal advice for both parties
- • Must be in writing and signed
- • Lawyer must certify advice was given
- • Legally enforceable when properly executed
Parenting Agreement
Focuses specifically on arrangements for children, including day-to-day care, contact schedules, and decision-making responsibilities.
- • Can be informal or formal
- • Should prioritize children's best interests
- • Can be converted to Parenting Order if needed
- • Often included within separation agreement
Spousal Maintenance Agreement
Deals with ongoing financial support from one partner to the other after separation, based on need and ability to pay.
- • Based on financial circumstances
- • Can be time-limited or ongoing
- • Often included in separation agreement
- • May be varied if circumstances change
Property Settlement Agreement
Specifically addresses division of relationship property including the family home, investments, KiwiSaver, and debts.
- • Details all assets and liabilities
- • Specifies who gets what
- • Addresses outstanding debts
- • Often the core of a separation agreement
3. What to Include in Your Separation Agreement
A comprehensive separation agreement should cover all aspects of your separation. Here's a detailed checklist of what to include:
1 Property Division
- •Family home ownership and sale
- •Other real estate properties
- •Vehicles and boats
- •Bank accounts and savings
- •Investments and shares
- •KiwiSaver balances
- •Business interests
- •Household contents and furniture
2 Debts and Liabilities
- •Mortgage responsibilities
- •Credit card debts
- •Personal loans
- •Tax obligations
- •Business debts
- •Student loans
3 Children Arrangements
- •Day-to-day care arrangements
- •Contact/visitation schedules
- •Holiday and special occasion plans
- •School and education decisions
- •Medical and health decisions
- •Child support arrangements
- •Relocation provisions
- •Communication between parents
4 Financial Support
- •Spousal maintenance amount and duration
- •Review clauses for maintenance
- •Life insurance policies
- •Health insurance coverage
4. Legal Requirements for a Valid Separation Agreement
For a separation agreement to be legally binding and enforceable in New Zealand, it must meet specific requirements under Section 21 of the Property (Relationships) Act 1976.
Critical Requirements
- Written document: The agreement must be in writing
- Both parties sign: Each partner must sign the agreement
- Independent legal advice: Each party must receive advice from their own separate lawyer
- Lawyer certification: Each lawyer must sign a certificate confirming they explained the agreement's effect and implications
What Independent Legal Advice Means
The requirement for independent legal advice is strict. This means:
- Each party must have their own separate lawyer - you cannot share a lawyer
- The lawyers must explain the implications of signing the agreement
- Advice must be given before signing, not after
- The lawyer must certify they've provided this advice
Why This Matters
If these requirements aren't met, the court can set aside (invalidate) the agreement. This could happen years later, leaving you in a worse position than if you'd followed the proper process from the start.
5. How to Create a Separation Agreement
Creating a legally binding separation agreement involves several steps. Here's the process from start to finish:
Gather Financial Information
Before negotiations begin, both parties should compile a complete picture of all assets, debts, income, and expenses. This includes property valuations, bank statements, KiwiSaver balances, and any business interests.
Discuss and Negotiate Terms
Work together (or through lawyers/mediators) to agree on property division, children arrangements, and any ongoing support. Consider using mediation if direct communication is difficult.
Each Party Engages a Lawyer
Both you and your partner must have separate lawyers. One lawyer will typically draft the agreement based on what you've agreed, then the other lawyer reviews it with their client.
Review and Refine
Your lawyers may identify issues or suggest changes. This back-and-forth continues until both parties and their lawyers are satisfied with the terms.
Sign the Agreement
Both parties sign the agreement in the presence of their lawyers. Each lawyer then signs the certificate confirming they've provided independent legal advice.
Implement the Agreement
Transfer properties, close joint accounts, update beneficiaries, and implement all the terms agreed upon. Your lawyers can help with the legal aspects of implementation.
6. Separation Agreement Costs in New Zealand
The cost of a separation agreement varies depending on complexity and whether issues are contested. Here's a realistic guide to costs in 2026:
Simple Agreement
- • Limited assets
- • No children or agreed arrangements
- • Both parties cooperative
- • Straightforward property division
Standard Agreement
- • Family home and mortgage
- • Children arrangements needed
- • Some negotiation required
- • Multiple assets to divide
Complex Agreement
- • Business interests involved
- • Disputed property claims
- • Difficult negotiations
- • Trusts or complex assets
Remember: You Both Need Lawyers
These costs are per person. Since both parties need their own lawyer, multiply these figures by two for the total cost of reaching an agreement. However, this is almost always cheaper than going to court.
Ways to Reduce Costs
- Be organized: Gather all financial documents before your first lawyer meeting
- Communicate effectively: Try to agree on major points before involving lawyers
- Consider mediation: A mediator can help you reach agreement more efficiently
- Be reasonable: Fighting over minor items increases costs dramatically
- Stay focused: Keep emotions separate from negotiations where possible
7. Enforceability and Disputes
A properly executed separation agreement is legally binding and enforceable in New Zealand courts. However, there are circumstances where an agreement can be challenged or set aside.
When Can an Agreement Be Set Aside?
Under Section 21J of the Property (Relationships) Act 1976, the court can set aside an agreement if:
Technical Defects
- • Not in writing
- • Not signed by both parties
- • No independent legal advice
- • Missing lawyer certificates
Conduct Issues
- • Fraud or misrepresentation
- • Duress or undue influence
- • Non-disclosure of assets
- • Unconscionable conduct
Serious Injustice Test
Even if an agreement meets all technical requirements, the court can set it aside if giving effect to it would cause "serious injustice." This is a high threshold - simple unfairness isn't enough. The court considers all circumstances including the parties' conduct and any changes since the agreement was signed.
What Happens If Someone Breaches the Agreement?
If your ex-partner doesn't comply with the agreement, you can:
- Seek enforcement through the Family Court
- Apply for specific performance (forcing them to do what they agreed)
- Claim damages for any losses caused by the breach
- In some cases, apply for the agreement to be varied or set aside
Need Help With Your Separation Agreement?
Our experienced Auckland family lawyers can help you create a fair, legally binding separation agreement that protects your interests.
Frequently Asked Questions
Is a separation agreement the same as a divorce?
No. A separation agreement is a contract between you and your partner about how to divide your property and arrange your lives separately. Divorce is a legal process that formally ends your marriage. You can have a separation agreement without being divorced, and you'll need to be separated for 2 years before you can apply for divorce in New Zealand.
Can I write my own separation agreement?
You can discuss and agree on terms yourselves, but for the agreement to be legally binding under NZ law, both parties must receive independent legal advice and have lawyers certify the agreement. Without this, your agreement won't be enforceable in court.
How long does it take to create a separation agreement?
If both parties are cooperative and have straightforward assets, a separation agreement can be completed in 2-4 weeks. More complex cases with significant assets, business interests, or disputes can take 2-6 months or longer.
Can a separation agreement be changed later?
Yes, if both parties agree. You would need to create a new agreement (with independent legal advice again) that varies or replaces the original. If you can't agree, you may need to apply to the court to vary the agreement, but this is only possible in limited circumstances.
What if we can't agree on terms?
If you can't reach agreement through direct negotiation, consider mediation with a family mediator. If mediation doesn't work, you may need to apply to the Family Court for orders. The court will then decide property division and children arrangements according to NZ law.