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Untying the Knot

I received a distraught phone call recently from Ramona. It was Wednesday and she was due to get married on Saturday. The one hitch to her getting hitched? Her husband-to-be, Ian, was still married to his ex and hadn’t got around to getting a divorce. “Can an urgent divorce be done?” pleaded Ramona, “What about the caterer?!”.

Getting a divorce is relatively straightforward in New Zealand and you don’t need a lawyer. However, it takes time and there are some things you need to be aware of.

The legal term for a divorce is a “dissolution”. To bring your legal marriage or civil union to an end, you need to obtain a dissolution (or divorce) order from the Family Court. The dissolution brings your marriage or civil union to a legal end so that you are each free to remarry. The dissolution does not resolve issues to do with your children or your property.

While it is a relatively simple process, you don’t want to put the process off. It can take some time to get all the paperwork together and to be considered by the Court. If there are Court backlogs, this can make things slower. Furthermore, once the Court decides it is appropriate to make an order, the order usually won’t come into effect until one month after the order is made. You will be legally married until then.

However, you can’t jump on ahead too soon – you can only apply for a dissolution order if you have been "living apart" for 2 years.

It is not necessary but you can produce a separation or relationship property agreement to assist you to prove you have been living apart for the required period. Increasingly we have clients who wish to live apart as a married couple but remain sharing the family home for financial reasons. They may be nesting or in an arrangement akin to "flatmates". An agreement to confirm they are no longer living together as a married couple is highly prudent in this situation.

Once you have been separated for at least two years, it will be very difficult for the dissolution application to be defended. This is because there is only one legal ground the Court needs to be satisfied of in order to make the order - that the marriage or civil union has broken down irreconcilably. The evidence required to prove this is that you have been living apart for at least 2 years. If the Court has evidence of this, it will make the dissolution even if one party doesn't want the dissolution or divorce.

You can get the application forms for a dissolution order from the Ministry of Justice. You will need your original marriage or civil union certificate or a certified copy of it. If you have one, you should also attach a copy of your separation agreement. When you take your application to the Court, you will need to pay a filing fee of $211.50.

The simplest way to apply is jointly, making the application together. If you both agree to the dissolution order being made, you can indicate on the application that you don’t require a court hearing. If you do this, you won’t have to appear before a Judge – a Registrar will consider the application and you won’t need to be present. However, if things are urgent and you need an order made in time for one of you to remarry, you can indicate you both agree and ask for a hearing before a Judge. You will both need to go to the hearing to confirm your agreement to the order and the Judge can make an order that immediately takes effect. However, bear in mind there can be delays in getting a hearing before a Judge!

If you cannot make a joint application, you will need to make the application yourself and then have the application given to the other person. You will need to arrange someone to serve the application personally on the other person. Sometimes, you can pay a private investigator or process server to do this. The person who completes service (gives the application to the other person) will have to provide an affidavit to the Court to confirm that service took place. If the other person is difficult to locate, you will have to ask the Court for special directions that let you serve the other person in some other way, such as by email, advertisement or through another person.

While the process is simple enough, it did little to help Ramona with her wedding coming up in a few days. All was not lost, the caterers were not cancelled and a ceremony was not held but they had to go through another marriage ceremony to be legally married after Ian’s dissolution finally came through.

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