When was it over? When to call it quits? When did you say goodbye? Am I separated? What's in a date?
In the midst of a relationship breakdown, when you and your former partner separated is not often a front of mind question. However, your separation date can be important information in family law proceedings. For example, under section 2F of the Property (Relationships) Act 1976, the date at which the share of relationship property is to be determined is the date the relationship ended.
Separation occurs when parties to a marriage or de facto relationship no longer live together as a couple. Establishing the status of living apart requires the presence of mental and physical elements, in other words, an intention to separate (mental element) and actual separation (physical element).
Relevant factors for the Court in considering whether separation has occurred include sharing:
• One dwelling;
• Financial resources (for example, a joint bank account);
• Household activities (for example, cooking);
• One bedroom;
• A sexual relationship;
• Leisure (for example, a holiday);
• Social activities (for example, attending a birthday party together); and
• Presenting to outsiders as a couple.
Often parties remain living together following the decision to separate when there are children involved or they continue to live together for financial reasons. If this is the case, it is important you obtain independent legal advice as soon as possible as continuing to live together may have unintended consequences, in particular if the Court deems your separation date to be a different date than you thought.
Having a defined date of separation can be important in family law proceedings, for example:
• In divorce proceedings, one condition of granting an order for dissolution of marriage (divorce) is that you have been separated (living apart) for at least two years;
• In relationship property proceedings, de facto couples must apply for a property settlement within three years of separating; and
• In relationship property proceedings, when calculating the relationship property pool to be divided, it is typical for some of your assets and liabilities to be valued at your separation date such as your bank accounts, KiwiSaver balance and credit cards.
• In relationship property proceedings, property accumulated after your separation date is presumed to be your separate property.
If you have recently separated from your partner and need assistance with any family or relationship property matters, please contact:
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Written by Peter Fuscic, Vinnie Kumar and Amber Holdaway.
© McVeagh Fleming 2023
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.