If you had intended to separate from your spouse before the lockdown, or if you are one of the anticipated many, whilst confined with your other half have realised you do want to separate. The current Covid-19 lockdown might have you thinking separation is not an option available to you for the foreseeable future, but that is not the case.
Whilst it is true moving house has been deemed nonessential, this does not mean you cannot separate. You can still be separated in the eyes of the law while living in the same house and there is good reason to take such steps. Despite physical separation not being an option, the Courts have recognised instances where parties have mentally and physically stopped living together, despite still living under the same roof. To achieve this you will need to essentially have separate lives while living in the same residence this is called 'separation under the one roof'.
Waiting until after the lockdown ends to separate may not be in your best interests. The date of separation can make a big difference in a number of ways, such as when your marriage can be dissolved. The separation date is also important for defining the relationship property. What is in your 'relationship property pool' is assessed at the date of separation and your share may change. Property you acquire during this time with the intent of it being separate property may still be relationship property if you have not yet stopped living together as a couple. Separating at a later date can also mean you are responsible for maintenance payments to your spouse for a longer period of time.
Steps You Can Take
Agencies like Work and Income may require you to prove your living apart arrangements, or the Court may need to look at when separation occurred. To do this, they may look to the following indicia which involve being physically and mentally separated, none of which on their own are conclusive as to whether or not you have separated. Therefore taking only one or two of these steps may not be legally enough.
If you cannot move to separate houses as many cannot in the current lockdown, you should be sleeping in separate rooms, or at the least separate beds. If you continue to sleep together in the same bed you are not physically separated, and especially so if you continue to engage intimately. To be considered as separated - sex, sexual activity, intimacy and sharing of the same bed must cease.
This also applies to the sharing of meals or domestic duties, if you usually cook for them or do their laundry or cleaning this indicates to the Court you are still living together as a couple. You should consider cooking and performing domestic duties separately. This can be similar to how cooking, cleaning, laundry and other domestic duties would operate in a shared living situation.
Sharing financials such as bank accounts is also indicative of being together as a couple. It is important for separated couples to sort out their financial affairs. Where possible close joint bank accounts and open separate ones and ensure your salary is being paid into your own personal bank account. You will need to work out how debts and loans will be paid, what your superannuation or insurance entitlements are and change your will. You’ll need to tell your bank/s, superannuation and insurance companies that you have separated.
How your family, friends and the public perceive your relationship is also important. If they are of the view you are separated this will show you are for all intents and purposes separated to the Court. To show this, you should keep a record of communications to friends and family explaining that you are separated despite still living in the same house. For this reason it is also important to change your relationship status on documentation (bank documents, Work and Income, IRD documents etc.) you have an obligation to tell agencies such as Work and Income of any changes to your relationship status, not amending them can weight against separation.
The Looming De Facto
It is well known that married couples generally get half of the relationship property on separation, this also extends to de facto relationships of more than three years. Knowing whether or not your relationship has become a de facto one is not always clear and can easily happen without you realising. The lockdown may have put you in a situation, where you are approaching the de facto standard, and your options to separate or take steps to ensure you are not in a de facto relationship have become limited.
The Courts have also found there is a grey period, where parties transition from a courting relationship to a de facto relationship. This period often involves moving in together, sharing finances and domestic duties. The lockdown has put some couples in a situation where they had to choose between making the jump to move in together or face not seeing each other for the foreseeable future. You may now have to consider the property consequences that will flow from any lockdown decisions you took relating to your relationship.
There are consequences of meeting the threshold for a de facto relationship, such as the relationship property remedies available on separation. If this may be something that you are now facing, or the lockdown has you considering, you can take steps as outlined above to ensure you are not meeting the de facto criteria, or a relationship property agreement to define your separate property.
We Are Here to Help
If you need any assistance or clarification on what steps you should take regarding separating while living under the same roof or if you have queries about your relationship property or separate property at this time please get in contact with us. If you have questions or concerns about whether or not you may be in a de facto relationship and should it end subject to possible property division under the PRA, we can assist.
Please contact Rebecca Davies on (021) 0275 8833 or by email at email@example.com or Kate Thompson on
(021) 042 8593 or by email at firstname.lastname@example.org. We are working from home during the lockdown and are available for meetings by telephone, Zoom or Skype.
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© McVeagh Fleming 2020
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.