Separating is never easy - Napier CAB can help

CAB volunteer Bryce helping a client.

January is notoriously the month when relationships are most likely to end, with the nickname ‘Divorce Day’ being assigned to January 3. It seems that many couples who are struggling with their relationships stick it through Christmas and the New Year because holidays, parties, presents, plans, and family events have been organised and booked, and so much emphasis is placed on everyone being happy that nobody wants to admit there are cracks appearing in the relationship. Also, many people stay together for the sake of the children. Then after the festivities are over, reality hits.

Napier Citizens Advice Bureau (CAB) frequently has clients phoning, emailing, or coming in to talk about what they need to do if they want to separate. The cab.org.nz website has a lot of information on this topic, and the following includes some of the advice clients may be given.

What do I need to do to get a divorce?

To dissolve a marriage or civil union, you need to apply to the Family Court. You can apply for a divorce in New Zealand so long as you have been living apart for at least two years. Even if the ceremony was held overseas, as long as one of you is living in NZ now, you can make the application.

You do not need a lawyer to make the application, but you can choose to get advice from a family lawyer at your own expense. Legal aid is not available for divorce applications. The process for applying differs depending on whether you are applying jointly or on your own, and whether your spouse agrees or not. If you both want a divorce, you can apply with a joint application. You can complete the forms separately, if one of you lives in a different country, or jointly, if you live close by to each other. If only one of you wants a divorce, or only one of you wants to apply, then one spouse can apply alone, which is called a one-party application.

What documents do I need?

You can download the appropriate forms from the Family Court website or go to your nearest courthouse and ask for them. There is a fee of around $210, but you can apply for a fee waiver if you can’t afford the fee. You will need to include a certified copy of your marriage certificate along with your application. If you are applying on your own and do not want to appear in court, you will also need a sworn written statement (affidavit) with your application that says you have been living apart for at least two years. The court will give you documents and instructions on how to serve them to your ex-spouse. Your ex-spouse will have 21 days (or longer if they do not live in NZ) in which to respond if they do not agree to the divorce, or do nothing if they agree. If you are both applying jointly, you can decide whether you want to appear in court or not. If you do want to appear in court, then both of you must go. A court judge will consider the application, and if they make a dissolution order, it will become final on the same day. If you do not want to appear in court, then your application will be considered by a court registrar. If they make a dissolution order, it will become final one month from that day.

More information on making the applications can be found on the Ministry of Justice website or the cab.org.nz website.

What if I don’t know where my ex-partner lives?

If you don’t know where your ex-partner lives, you can ask the court for “substituted service”. Substituted service means serving the documents in a different way, such as via email or Facebook, through someone they know, or not serving them at all. This is another form and affidavit that needs to be given to the Family Court.

If you need help in filling out the forms, you can contact the courts by phoning, emailing or visiting in person. The CAB is also always there to help. The CAB also has regular Justices of the Peace who can assist in certifying documents and signing your sworn affidavits.

What about relationship property?

You do not need to have sorted out your relationship property before you get a divorce. The Family Court will not deal with this as part of the divorce application. However, if you cannot come to an agreement about how your relationship property should be shared and you need the court’s help, you must apply within 12 months of the divorce taking effect. Pets are considered part of relationship property. The CAB has more information on sorting out relationship property on its website.

And what about the kids?

Legally, both parents are the legal guardians of the children, even after divorce. This means that you both need to agree on the custody arrangements, which includes where the children live, visiting rights etc. It’s a really good idea to have all these arrangements written down in a parenting plan. If you can’t agree, you can use mediation through Family Disputes Resolution, and if this doesn’t work, you can apply to the Family Court for a parenting order. The children can decide for themselves who they want to live with if they are 16 years old or over. There can be many questions or things that need to be sorted regarding the care of children after a divorce. It can be a very tricky and sad time, but there are people who can help and offer advice.

Napier CAB is one of these places you can always ask.

■ Anyone needing advice can contact the Napier Citizens Advice Bureau in Bower House, Bower Street, Monday to Friday, 9am-4pm. At present, we are still seeing people face-to-face, so pop in or call us on 06 835 9664 or 0800 367 222. Alternatively, you can email napier@cab.org.nz. Confidentiality is assured.