How To Get A Divorce
In New Zealand a divorce is no longer called a divorce, but the law now calls it a dissolution of marriage or civil union. I shall however use the terms divorce and dissolution interchangeably.
The Two Year Rule
You have to have been living apart from your spouse for at least two years immediately before you file an application for a dissolution of marriage. But you can get a Separation Order before then, and I encourage you to do so for several reasons.
The one and ONLY ground for a Court to grant an order dissolving a marriage, is that the marriage or civil union has irreconcilably broken down. The Courts view is; if you have been living apart from your spouse for at least two years then that shows that your marriage has broken down irreconcilably.
You will have to prove that you have been living apart from your spouse for the requisite period (two years). A separation order or separation agreement made after you have separated and start living separately will provide evidence to present to the Court proving that two years of living apart has passed as these documents should have the recorded the date you started living apart.
The Court HAS to dissolve a marriage once the ground for dissolution of marriage (irreconcilably broken down) has been proved. However, section 45(1)(a) of the Family Proceedings Act 1980 requires the Court to be satisfied that satisfactory arrangements have been made for the day to day care and maintenance of all children of the marriage or civil union before making an order dissolving the marriage or civil union.
So, provided that you have lived apart from you spouse for two years or more AND the Court is happy with child care arrangements, then either one of you or both of you can apply for a dissolution of marriage.
What To Do Now
If two years has not yet lapsed you are strongly encouraged to see your family lawyer to obtain a separation order or at least draft up a separation agreement to use as evidence when you do apply to the Court for an order dissolving your marriage (or civil union).
There are also other advantages to obtaining a Separation Order.
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