Family law considerations when migrating to NZ
New Zealand is becoming an increasingly popular destination for migrants. This article explores important considerations for immigrants who experience a change in their personal relationship after settling in New Zealand.
Family paradise? – Family law considerations when migrating to New Zealand
New Zealand is becoming an increasingly popular destination for migrants. In the planning and preparation involved in moving to a new country, the focus is on the excitement of the new life ahead, and not on the possible breakdown of an existing relationship. Migrants to New Zealand often have a limited knowledge of our laws, particularly in the areas of family law which can differ greatly from other jurisdictions. This article explores important considerations for immigrants who experience a change in their personal relationship after settling in New Zealand.
The law in New Zealand
In many circumstances a separation will be an emotional and distressing time. This can become even more stressful if the couple is unaware of the laws in New Zealand which apply to the dissolution of their relationship.
The Property (Relationships) Act 1976 provides that the relationship property of married, civil union, and de facto (including same sex) couples who have lived together for at least three years is divided equally on separation or the death of one or both parties. This applies to existing relationships and includes those relationships which commenced prior to settlement in New Zealand. If New Zealand is the principle place of residence, the Act will apply once a couple has lived together for three years or more, whether in New Zealand or overseas.
It is not just relationship property in New Zealand that can be treated in this way. The courts have the jurisdiction to deal with moveable property overseas such as the sale proceeds of overseas property and superannuation schemes. A couple who has separated after moving to New Zealand may find the ownership and subsequent division of overseas property treated differently from the laws of their home country.
Immoveable property, such as land and buildings, does not fall under the jurisdiction of the New Zealand courts. This real estate will be dealt with according to the laws of the country where the property is located.
Contracting out agreements
A contracting out agreement, commonly known as a pre-nuptial agreement, circumvents New Zealand’s relationship property laws applying to the division of property. This agreement sets out how relationship property is to be dealt with in the event of separation or death and is specific to each couple’s circumstances. It is important that a couple obtains expert legal advice when drawing up such an agreement. Whether narrow or broad in scope, a pre-nuptial agreement should provide certainty for both parties as to how property will be divided if the relationship ends.
Children who have immigrated to New Zealand will be covered by our guardianship laws. These laws prevent a child being relocated to another country without the consent of both parents. This may be problematic when a couple has separated and one parent wishes to leave New Zealand with the children. At short notice, the non-consenting parent could obtain an Order for non-removal to prevent any children being taken from New Zealand.
If the parties cannot reach an agreement, a court hearing will be required. The Family Court must consider a number of factors when determining where and with whom the children will reside. An important consideration is weighing up the desire of one parent to relocate against the reduced contact for the other parent who wishes to remain in New Zealand. If it is the decision of the court to not permit the children to relocate, one parent must decide whether to leave the children behind, or whether to remain in New Zealand.
New Zealand is a popular destination for same-sex couples to marry when it is illegal for them to do so in their home country. In 2018, there were 375 same-sex marriages involving overseas residents. Issues arise if the relationship breaks down and the couple wishes to divorce, but they do not live in New Zealand. The New Zealand courts do not have jurisdiction to grant a divorce if neither party lives in New Zealand as their principal place of residence. Furthermore, if the couple’s home country does not recognise same-sex marriage, it is unlikely they can obtain a divorce there.
How we can help
Cavell Leitch has expert Immigration and Relationships teams who can provide you with detailed advice on all aspects of the immigration process and assist you in protecting your property from New Zealand's relationship property laws. If you would like more information please do not hesitate to contact us.