Divorce: Getting a “Dissolution” Order
Requirements for getting a dissolution
When can I formally end a marriage or civil union?
Family Proceedings Act 1980, s 39
The only reason (sometimes called a “ground”) for getting a dissolution is “irreconcilable breakdown” of the marriage or civil union. In order to show this, the court just has to be satisfied that the two of you are living apart now and have been living apart for at least two years. In New Zealand, you don’t have to show anything else. For example, if you want a dissolution you don’t have to show that the other person is at fault in some way – that sort of thing is irrelevant in New Zealand law. You can’t shorten the two-year separation requirement, even if both of you agree you want to get divorced straight away.
If you have children under 16, the judge also has to be satisfied that you’ve made arrangements for their care, including day-to-day care and financial support. Often when an application has been made for a dissolution and the couple have children, the Family Court will refer the couple to attend a Parenting Through Separation course.
Proof that the parties have been living apart for two years can be provided by:
- a separation agreement, which can be either spoken or written (see: “Why make a separation agreement?”), or
- a sworn statement (affidavit) from either or both of you saying that you’ve lived apart for two years, or
- independent evidence, like an affidavit from someone who knows you both.
Do we have to live apart to be considered separated?
No. You can still be separated even if you continue to live in the same house (sometimes even if you have to continue sharing a room).
However, it could be harder to prove to the court that you were in fact separated for that time. It’s helpful if you can explain why the arrangement was a temporary solution (e.g., you couldn’t break a fixed-term lease). You can also rely on other evidence – for example, if you had divided your finances, if you had started sleeping in a guest room, or if you had told your wider community that you had separated.
In that case it’s particularly helpful to make a separation agreement, so that you can later prove when you separated.
What if we got back together for a while during the last two years?
Family Proceedings Act 1980, ss 40-42
You can still satisfy the two-year separation requirement even if you lived together for a while during those two years to try to work things out (a “reconciliation”), so long as this wasn’t for more than three months. You can even get back together more than once, as long as the total time together is not more than three months.
The law doesn’t assume that you’ve started living together again just because you have sex again after separating.
