Separated and Living in Different Cities: Where will your Court Proceedings take Place?

Tuesday 13 August, 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-partner moved to Dunedin from Hamilton after we separated. I still live in Hamilton. If we go to court, where will the proceedings be based?

There are rules around where an application can be filed, and it largely depends on where the parties are based and what type of proceeding is filed.  Pursuant to the Family Court Rules 2002 an application filed under the Property (Relationships) Act 1976 seeking orders to divide relationship property may be filed:

(a)    In the Court nearest to the respondent; or

(b)    In the Court nearest to the place where the subject matter of the proceeding arose; or

(c)     If no respondent is named, then in the court nearest to the place where the applicant resides.

If your ex-partner lives in Dunedin and wishes to make an application to divide relationship property they will need to file, the proceeding in the Hamilton Family Court.

An application under the Care of Children Act 2004 may be filed:

(a)    In the Court nearest the applicant; or

(b)    In the Court nearest the respondent; or

(c)     In the office of the Court that is specified in a written consent signed by all interested parties.

Your ex-partner could file proceedings relating to the care of children in the Dunedin Family Court or in the Hamilton Family Court.

It is possible for parties served with court proceedings to apply for the proceedings to be transferred to a Family Court in a different location. This requires an interlocutory application (which is an application for orders secondary to the main application, often more procedural in nature), and you need to establish that the proceedings can be more conveniently or fairly dealt with in the Family Court proposed.

My ex-partner and I live in Auckland, but I’ve got an amazing job opportunity in Christchurch. Can I take the kids with me?

To relocate with your children, there needs to be agreement from both parents as where children live is a guardianship decision. Relocating children without agreement can make you vulnerable to court action, including a court order to return the children to their previous location immediately. This could be frustrating if you have already relocated and started at your new job and moved into a new home.  

The Court will consider what is in the best interests of the children along with a range of other factors. What might be beneficial for you, may not be in the children’s best interests if it uplifts them from school, their friends and prevents regular contact with their other parent and extended family. We suggest the starting point is to try and have a constructive discussion with your former partner or spouse to see what he or she may be open to considering. Our team can assist with advice on these arrangements and formalising a parenting agreement.

I’ve moved out of the family home. Who pays the mortgage?

If you are considering separating, you need to look at what ongoing liabilities you have and your obligations in respect of those. If you own your home with a mortgage, you continue to have an obligation to meet those repayments regardless of whether you are living in the family home or not.

You could consider discussing an interim arrangement with your former spouse or partner about who would meet the outgoings where one party has sole occupation of the family home. This could include mortgage repayments, rates and insurance.

You should consider whether your former spouse or partner has the ability to pay the outgoings. If he or she earns minimal or no income, leaving him or her to meet these costs is not practical.

We suggest speaking to one of our team of experts as early as possible so that we can discuss your obligations here and what options could be available to you.

Can my ex take half of my KiwiSaver if we separate?

KiwiSaver contributions from income you earn during the relationship are relationship property, even if they are going into your own personal KiwiSaver account. If you and your partner separate, your ex could be entitled to a half share of your KiwiSaver balance.

If you want to protect your KiwiSaver (and any other assets you own in your sole name), it is best to speak to your partner about a Contracting Out Agreement (also known as a prenup). In that agreement, you can specify what assets you will keep separate and what assets will be shared in the event your relationship comes to an end.

The law requires that any Contracting Out Agreement needs to be in writing, both parties need to obtain independent legal advice before signing the Agreement and the lawyer who witnesses the agreement must certify they have advised their client on the effects and implications of the Agreement. Simply having an oral agreement, or an informally written agreement between the two of you would not be enough to protect your Kiwisaver contributions in the event of separation.