Australia and New Zealand Divorce & Family Law

In Australia and New Zealand you won’t have to prove any fault on the part of either spouse when filing for divorce. Both countries operate a ‘no-fault’ divorce system, and both encourage you to reach agreement on child and financial issues out of court. So, what are the grounds for divorce in Australia and New Zealand? How are child custody, contact and maintenance issues decided? And how will property and assets be divided on divorce in New Zealand or Australia? Here we discuss these issues and more.

Divorce laws in Australia and New Zealand

Divorce in Australia has been on a ‘no-fault’ basis since the Family Law Act was introduced in 1975. New Zealand also has ‘no-fault’ divorce laws. This means that the court does not have to consider what factors led to the breakdown of your marriage.

In both countries, the only ground for divorce is that your marriage has broken down irretrievably and there is no reasonable likelihood that you will get back together.

In Australia, you must have been separated for at least one year and one day in order to satisfy this ground. If you have been married less than two years you will have to show the court that you have tried to reconcile through counselling.

In New Zealand you must have been separated for two years.

It is possible to be separated and living in the same house, as long as you can prove that you have separate finances and social lives. You will also have to show that you do your own cooking, cleaning and washing.

In both countries, your divorce will only be granted if the court is satisfied that arrangements have been made for your children.

Child residence, contact and support arrangements after divorce in Australia and New Zealand

The family laws in Australia changed in 2006 and placed an increased focus on the right of a child to have a meaningful relationship with both parents.

The law now presumes that it is in your child’s best interests for parents to have equal shared parental responsibility. New Zealand law works in much the same way.

In Australia, if you are unable to agree on arrangements for your child, you can make an application for a parenting order to the Australian Family Court or the Federal Circuit Court. Before you do this, you and the other parent will have to go through pre-action procedures, including participation in dispute resolution. A court will require a certificate from an accredited family dispute resolution practitioner before you can make an application for parenting orders with the court.

A similar procedure applies in New Zealand. If you are divorcing and you have children, you will have to attend a ‘Parenting through Separation’ course before attending mediation to attempt to come to an agreement on childcare and contact issues.

A parenting order will cover issues such as:

• where your child will live
• parental responsibility
• how much time your child can spend with the other parent.

If practicable, and in your child’s best interests, the courts in Australia and New Zealand will order that your child spends equal time with each parent. If this is not possible, they will consider making an order where your child spends significant time with each parent.

In terms of child maintenance, the primary carer of the child can apply for child support from the other parent. The amount is based on each parent’s income, the number of children and the care arrangements for the child. In Australia this is administered by the Child Support Agency and in New Zealand the amount of support is assessed through a formula used by the Inland Revenue Department.

Both Australia and New Zealand are parties to the Hague Convention on Child Abduction. This means that if your child is taken out of the country without your permission, or taken to Australia or New Zealand from another Convention country, you can apply to the appropriate authority for help in ensuring your child is returned to their normal country of residence.

How finances are dealt with on divorce in New Zealand and Australia

Most couples in Australia and New Zealand resolve the division of their assets out of court, often through mediation or negotiation. If you don’t agree, then the court can make an order. Courts do not have a fixed formula and will consider every case individually.

Division of assets on divorce in Australia

Firstly, both parties have an obligation to provide full disclosure of their assets and liabilities. Then, the court will assess the contribution that each of you made during your marriage, both to the value of your assets and to the welfare of your family. These can be both financial and non-financial – for example looking after the home or children.

Then, the court will look at your current and future financial situation. They will consider factors such as whether one spouse has a more substantial earning capacity than the other, how long you were married, and how your marriage affected your earning potential (for example, you may have given up a career to look after your children).

Finally, the court will assess whether the division of assets achieved by the application of the above steps is ‘just and equitable’ to both parties.

Under the Family Law Act, you have a responsibility to financially assist your spouse if that person cannot meet their own reasonable expenses from their personal income or assets. This obligation can continue after divorce.

The amount of spousal maintenance will be determined by the need for support and what the other spouse can afford to pay.

Division of assets on divorce in New Zealand

If you have been married for more than three years, a court will presume that all ‘relationship property’ should be divided equally between both parties.

This includes your family home, income earned during your marriage, property you acquired during your marriage, and any increase in the value of property owed prior to the relationship by one party when that increase is attributable to the relationship.

‘Relationship debts’ are also presumed to be equally divisible.

If you were married less than three years, then division will be treated differently.

It is possible to apply for spousal maintenance in New Zealand. However, the presumption is that any maintenance payable should only be to help the financially disadvantaged spouse to ‘get back on their feet’ following separation, not that alimony is paid indefinitely.