Divorces can get complicated and messy. Family lawyer Jeremy Sutton explains a few of the issues that may arise. Photo / Getty images
New data released by Statistics New Zealand last week shows the number of marriages, civil unions and divorces in New Zealand continues to decrease, while the age at which Kiwis are getting married and divorced is gradually rising.
According to Stats NZ, there were 18,744 marriages and civil unions registered by New Zealand residents in 2023 - a slight drop from 18,858 in 2022.
Of that number, 13,827 were first-time marriages or civil unions, and 4911 were remarriages or civil unions.
In 2023, 7995 couples were granted a divorce in Aotearoa.
That’s slightly higher than in 2022, when 7593 couples were divorced - but it’s important to know the number of divorces and the divorce rate have been slowly decreasing since early in the 2000s.
Divorce lawyer Jeremy Sutton has spent the last few years writing regularly for the Herald, answering people’s questions about a myriad of divorce-related issues, from financial disputes to child custody matters.
Below are some of the topics Sutton has advised divorcing couples on in his regular column, Ex-files with Jeremy Sutton.
Q: My ex-husband and I separated four years ago. We have two daughters from our marriage, now aged nine and 11. My ex-husband has limited contact with them; they only stay with him on Fridays every second weekend.
After we separated my ex-husband set up a commercial cleaning business that appears to be very profitable. Last July he transferred the business, along with some other personal investments to a trust. This has reduced his personal income to next to nothing.
Since then, I have only received the minimum amount of child support payable from him (just over $1000 per year). I work as a primary school teacher and have not re-partnered. I am struggling to make ends meet. What can I do?
A: I presume you and the children’s father have had an informal child support arrangement until last July. It is common post-separation for parents to base their child support payments on the Inland Revenue online child support calculator.
Now that the children’s father has hidden his income in the trust, you must go through Inland Revenue.
As a first step, you need to apply for a formula assessment. This is an assessment of what child support is to be paid. It is calculated using your respective taxable incomes and how many nights you each care for the children. It is easy to apply for this on the Inland Revenue website.
You need to do this right away as the formula assessment of child support only starts from the date you apply.
Read more here.
Q: My ex-husband and I separated last year. We met when I was living in Melbourne and we relocated to New Zealand about 10 years ago. I still have most of my family living in Melbourne and I have not been able to visit my family or take our three children to see their family in Melbourne. I want to take them to see my extended family for Christmas this year. My husband and I have had a generally amicable co-parenting relationship since we have separated, but I am not sure how he will feel about not seeing the children over Christmas this year.
International travel is a guardianship decision that must be made jointly between a child’s guardians.
First, you need to speak with your ex-husband and get his agreement for you to travel overseas with the children.
If you cannot agree, you may attempt mediation. This can be through using a trusted friend or family member to facilitate the discussion. You could also attend formal mediation through a Family Dispute Resolution provider such as the FDR Centre or Fairway. If you are on a low income you may be eligible for a subsidy from the Government. Typically these mediations do not involve lawyers.
Read more here.
Q: My husband and I split up recently. We have two young children. My eldest, who is turning 10 next year, has said to both of us that he would like a phone for his birthday. I am against this, as I believe he is too young and that he has no need for a phone at this age. My husband believes he should get what he wants. Can I stop my husband from giving my son a phone? I believe it will not be good for him and that he will be healthier without one.
A: Smartphones are not going to disappear anytime soon; 45 per cent of the world’s population own one, and 67 per cent of people own a mobile device (this includes iPods, iPads, and other tablets.) The important question for any parent is “when should my child get one?”
This is a difficult decision for any parent and being separated only makes this discussion harder. You and your ex-partner may have different ideas about what is best for your children. The important thing to keep in mind in any disagreement is that at the end of the day you both believe you are arguing for what is best for your children.
Read more here.
Q: I separated from my partner of five years last month. We both work in well paid roles in the finance sector. We never got around to purchasing a property together, we just rented. All my savings went into term deposits with Westpac, and the balance of these accounts now is about $300,000.
My partner often discussed cryptocurrencies and I am aware he traded them frequently. He would stay up late in the evenings trading on his laptop.
We will soon take steps to divide our relationship property. I am concerned that I will lose half my savings and my ex-partner will hide some or all his investments so it will not be a fair division of assets.
A: Your concerns about your ex-partner’s cryptocurrencies are valid. The very appeal of cryptocurrencies for many cryptocurrency owners is their secretive nature: they are difficult to track and trace.
Cryptocurrencies are becoming a popular choice of asset (some online statistics indicate nearly a quarter of Australians now own them), so they are likely to pose an issue for many separating couples. The three largest cryptocurrencies are Bitcoin, Ethereum and Tether.
In theory, a cryptocurrency should be treated no differently to any other relationship property asset. Both parties should provide full and frank disclosure of all cryptocurrencies held. If either party fails to do so, the other should be able to obtain an order for discovery from the Family Court requiring the production of financial disclosure.
Discovery orders can be made against an ex-partner personally and can also be made against a third party (such as a bank, company, accountant etc). However, it is difficult to enforce discovery orders looking for documentation about cryptocurrencies.
Read more here.
Q: I separated from my wife two years ago. We have three children together, aged 4, 6 and 9. Since separating, my wife and children have remained living in the family home. I moved into a rental unit.
My wife works part-time for about 10 hours per week as a relief teacher. I have continued to run a profitable transport business I set up about 10 years ago. Since the separation, my wife has had access to all the income from the business. She can access all the relevant bank accounts and has a joint credit card.
I was shocked to receive a letter from her lawyer this week requesting spousal maintenance of $1500 per week on an ongoing basis. This seems a bit unfair given we have already been separated for two years and she can access the bank accounts. What is the legal position and how should I respond?
A: After separation, one party may need financial support from their ex-partner or spouse to meet their living costs while they re-establish themselves. Spousal maintenance is to be paid to the financially weaker party if they cannot meet their “reasonable needs” and the other party is able to provide financial support.
While it is referred to as spousal maintenance, the legislation confirms de facto partners are also able to bring a claim.
The financially weaker party cannot expect to receive spousal maintenance forever.
It is only a temporary arrangement. The law in New Zealand requires both parties to assume responsibility for their own needs within a “reasonable time”.
Read more here.
Q: My children’s father and I separated very recently. He has moved out of the home but hasn’t got a permanent place yet. For now, he has the children stay with him at his parents on the weekend and I have them for the rest of the week. Mother’s Day is coming up and I want to spend the day with the children and my own mother, but he is refusing to give up any of his time. We also have a family cat. It has stayed with me and the children, but my ex-husband has told me he wants the cat when he finds a permanent place. He probably looked after it more than me, but I can’t bear the idea of giving her up.
A. Your first Mother’s Day alone is likely to bring up a range of emotions. Adjusting to a shared care arrangement is a difficult time for you, your children and their father.
Co-parenting involves a lot of compromise and collaboration. It is best to try reach a compromise together. Think about how he could make up that time with the children in other ways. He may be more willing to compromise if that time can be made up elsewhere. If you cannot agree, consider whether you could celebrate Mother’s Day on a different day. It may not be the Sunday brunch you had hoped but don’t let the day go uncelebrated.
Often Mother’s Day means more to the children than the parents. If they are young, they may have spent time at school or kindergarten making you a card or gift to celebrate. It is important for both of you to listen to the children and always act in their best interests.
Read more here.
Q: My partner and I want to buy a townhouse when it goes to auction. I am due to receive a substantial inheritance shortly so I will provide the full deposit. I also earn more than my partner so will contribute a greater proportion towards the mortgage. How do I get a proper value for the townhouse? How do I protect myself in case our relationship goes south?
A: Buying a property is an exciting time in any relationship but it can feel complicated if you are contributing different amounts to the purchase. There are steps you can take to protect your inheritance if you and your partner separate in the future.
If you are seeking a valuation of the townhouse prior to the auction you should ask the real estate agent who has listed the property. They may be able to provide an indication of what they expect the home to sell for. You can also ask other real estate agents who are familiar with the area. There are a number of online estimation tools such as homes.co.nz which will tell you what other townhouses in the area have sold for.
Read more here.
Q: Last month my husband withdrew $15,000 from our kids Sharesies account to buy himself a new e-bike.
He did this without discussing it with me first and I’m really upset about it.
He said he’d replace the money, but it hasn’t happened yet. This money is supposed to be for our children’s future. Is there anything I can do to stop this from happening again without my consent?
A: Yes, you can stop this happening again. Your husband is in breach of trust by removing the funds from your children’s Sharesies account for his own benefit.
Under Sharesies terms and conditions, a Kids Account operates as a “bare trust”.
What this means is that your children are the beneficial owners of the investments and/or funds in the account and any income generated.
Other companies may have different terms but this how Sharesies works. Investments or funds can only be withdrawn for the sole benefit of the children.
Read more here.
Jeremy Sutton is a barrister and family lawyer at Bastion Chambers.
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