Untying the Knot | The Family Lawyer

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, 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
order from the Family Court. The dissolution only 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 separated for 2 years.

You don’t need to have been living apart in order to be separated. Some of our clients decide to end their marriage but keep living in the same house until they sort out their finances. Once you have been separated for at least two years, it will be very difficult for the dissolution application to be defended.

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 – you both make the
application. 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, 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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