Many people who immigrate to New Zealand often know little about our domestic laws and how they may impact their rights, particularly in the family context. When a couple separate they can find themselves faced with legal issues they weren’t aware of in what is already an upsetting and confusing time. This is particularly so in an unfamiliar country. Below we briefly discuss common pitfalls immigrants face when separating in New Zealand.
Relationship Property Law
New Zealand’s property sharing laws differ greatly from many other jurisdictions, which has the potential to catch out immigrants who to come to New Zealand and don’t realise how our laws apply to their relationship.
Relationship property of de facto, civil union, and married couples (including same sex couples) who have lived together for three years is divided equally on separation or the death of one or both parties. The Property (Relationships) Act 1976, which deals with division of property on separation, applies to existing relationships. Therefore it doesn’t matter if your relationship was commenced overseas, if you reside in New Zealand as your principle place of residence the Act will apply once you have been living together for 3 years or more, whether in New Zealand or overseas.
On separation, our courts have jurisdiction to deal with all property in New Zealand and moveable property overseas. Moveable property includes things such as overseas superannuation schemes, disability pension entitlements paid by a foreign government to a foreign bank account and sale proceeds of overseas property. As a consequence, a couple who immigrate to New Zealand and separate may find that property from their home country that otherwise wouldn’t be divided on separation, will be up for division in New Zealand.
New Zealand courts do not have jurisdiction to deal with immoveable property overseas such as real estate. Division of immovable property must be dealt with according to the laws of the country the property is located in.
Contracting out agreements
For many immigrants, New Zealand’s relationship property laws do not reflect how they wish to deal with their property. One way to prevent our relationship property laws having unwanted effects on your relationship is to enter into a contracting out agreement, more commonly known as a pre-nuptial agreement. A contracting out agreement sets out exactly what is to happen with the couple’s property on separation or the death of one party. Each agreement is tailored to the couple’s specific circumstances and can be as limited or far reaching as desired. It may be that only the family home is covered, or the agreement may deal with all assets the parties have, including assets owned overseas. Having a contracting out agreement provides certainty and security for both parties.
If you immigrate to New Zealand with your children, they are covered by our laws while New Zealand is their permanent home. This can cause difficulty if a couple separate with children in New Zealand. More often than not, one partner wants to return to their home country with the children. New Zealand guardianship laws prevent a child being relocated to another country without both parents’ consent. If one parent attempts to remove the children from New Zealand an Order for non-removal can be obtained at short notice to prevent the child leaving the country. This can be particularly upsetting for immigrants who wish to return to the support and familiarity of their home country following the breakdown of a relationship.
A court hearing is required if agreement between the parents cannot be reached. The court considers a variety of factors when deciding where the children will reside, and in particular weigh up the desire of one parent to relocate against the reduced contact the children will have with the other parent if they move. If the Court will not allow the children to relocate, the parent who wishes to move must consider whether they will do so leaving the children behind, or whether they remain in New Zealand.
New Zealand recognises same sex marriage, and as a result, it is commonplace for couples from countries that don’t recognise their relationship to travel to New Zealand and marry. Difficulties arise if the marriage breaks down and the parties wish to divorce. If neither party resides in New Zealand as their principle place of residence, our Courts do not have jurisdiction to grant a divorce. Similarly, if the same-sex marriage is not recognised in the couple’s home country it is unlikely that they will be able to obtain a divorce there.
What we can do for you
Cavell Leitch have 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.