Navigating Separation: Custody, Property, and Finance FAQs

Thursday 25 January, 2024

There are many questions that arise upon the separation of a couple, or even during a relationship. Some of the questions we get asked a lot are below:

My ex wants to take the kids out of town for Christmas this year but that impacts me spending time with them on Christmas Day. What can I do?

The holiday period is a time where we want to spend time with friends and family, but difficulties can arise for separated parents when navigating shared care of the children over Christmas.

Where one parent wants to take the children away and this is different to the usual care arrangement that is in place, there needs to be agreement by both parents. We would encourage you to reach agreement where possible.

If you are the parent that wants more time with the children over Christmas, consider something that the other parent may want. Have they been planning an overseas trip later in the year that you could agree to at the same time? If you do agree, consider writing this down so that both parents know what has been agreed to. Remember, the focus should be what is in the best interests of the children.

If you cannot agree, you may need to consider other available resources to assist. This could be through mediation, negotiations between lawyers or the involvement of the Family Court.

What is separate property and what is relationship property?

Under the Property (Relationships) Act 1976, property is divided into two categories: relationship property and separate property. When entering a de facto relationship, marriage or civil union, it is important to understand the two categories of property to avoid any disputes down the road.

Relationship property is the property that would be divided equally between you and your partner if you were to separate. Common examples of relationship property are:

• The family home.
• Family chattels, including the family car, furniture and anything used for the purpose of the family.
• Family businesses and investments.
• Property that is owned together by both parties to the relationship.
• Property that is acquired during the relationship including any income that is earned.
• Any contributions to superannuation, kiwisaver and investments made during the relationship. 

Separate property is property which is not relationship property. This continues to be your individual property if a relationship ends, provided it has not become relationship property by how it has been used during the relationship. Common examples of separate property are:

• Property you acquired before you began living with your partner.
• Gifts such as heirlooms and taonga made to you.
• Property you received by way of gift, inheritance or as a beneficiary of a trust.

Separate property can become relationship property depending on how it is used during the relationship. A common scenario is where one party owned a home before the relationship started, and it is used as the family home. Upon separation, despite one party owning the property at the commencement of the relationship, the other partner may have an entitlement to a half share.

We have separated. Do I need to give my engagement ring back?

An engagement ring can be classified as a gift. Typically, your partner would have given you the engagement ring as a gift with the intention that it is for your use only and that it is yours to keep. This means that the ring becomes your separate property regardless of how it was financed. Although the ring may signify your relationship, there is no need to give it back to your former partner if you decide to separate.

My partner likes to shop, but I am a saver. Is there any way I can protect my savings if we separate?

If you separate, the law provides that all relationship property is divided equally. This includes bank accounts in your sole names as these funds have usually come from income earned during the relationship. If you have significant savings in an account and your partner has spent all their income, you could find yourself having to share your hard-earned savings!

If your partner’s spending is a concern and you are worried about preserving your savings or other assets you have built up, consider entering into a contracting out agreement. While you can enter into a contracting out agreement at any time, we recommend having these discussions before your relationship reaches the three-year threshold.

If you have further questions regarding any of the above, please contact one of our Family Law experts below.