Divorce: Getting a “Dissolution” Order
Requirements for getting a dissolution
Do I need a reason to get a dissolution?
There are only two reasons (sometimes called “grounds”) for getting a dissolution in New Zealand: “irreconcilable breakdown” and “protected person under protection order”. The second ground is only available to victims of family violence who have a protection order against their spouse or civil union partner.
What is considered an “irreconcilable breakdown”
Family Proceedings Act 1980, s 39
To have a marriage or civil union dissolved on the ground of an “irreconcilable breakdown”, 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.
Do I need to wait to get a dissolution if I am a victim of family violence?
Family Proceedings Act 1980, s 39A
If you have experienced family violence and have a final protection order against your partner, you can apply to the Family Court to dissolve your marriage without having to show that you have been living apart for two years. To apply, you need to provide:
- a copy of a New Zealand final protection order or registered Australian protection order against your spouse or civil union partners, and
- a copy of your marriage or civil union certificate.
Where can I end my marriage or civil union?
Family Proceedings Act 1980, ss 37, 39A, s 44Family Law Act 1975 (Aus), ss 39, 48
Divorce laws vary between countries (and sometimes even within them). It is important to note that where you are living at the time you seek a dissolution of a marriage or civil union will often be more relevant in terms of how you go about dissolving the marriage or civil union than where the marriage or civil union was originally entered into.
The New Zealand courts can issue orders to dissolve marriages and civil unions entered into in other countries, provided that at least one of the parties is domiciled in New Zealand (although whether the New Zealand dissolution order is recognised in the country where the marriage or civil union was entered into is a matter for that country’s laws).
Conversely, New Zealand courts cannot dissolve a marriage or civil union entered into in New Zealand (and under New Zealand law) if both parties live permanently in other countries.
Dissolution/divorce orders made overseas are generally recognised in New Zealand and legislation requires the courts to recognise them in a range of circumstances, including where at least one of the parties is domiciled in, or a citizen of, the country in which the order is made. This is the case even when a divorce may not have been possible in New Zealand in the same situation.
For example, if a New Zealand woman packed her bags, left her husband (whom she had married in New Zealand), and on the same day moved permanently to Australia, she could apply for a divorce under Australian law one year and one day later. That is because, at this point, she would meet both the requirements related to residence in Australia and period of separation in Australian divorce law. This divorce would be be recognised in New Zealand, even though, under New Zealand law, the required period of separation to get a dissolution is generally two years.
