Separation – Can I Make My Own Agreement to Divide Relationship Property?

People often ask whether they need lawyers when they separate, or whether they can sort out the division of assets between themselves. 

There are two steps for people to consider. The first is, should I get legal advice before we start negotiating? The second is, should I involve lawyers in documenting the settlement we have agreed? The prudent answers are – yes, and yes.

 

Should I get legal advice before we start negotiating?

 

Yes you should. This is so you understand what your rights and entitlements are, to enable you to have informed discussions. Remember:

  • The law is not ‘one size fits all’;
  • The rules about a 50-50 division may not apply to all of the assets a couple own;
  • There may be adjustment or compensatory claims that one party can make;
  • You need to understand what date values of different property should be taken.

What happened with the property division in your friend’s divorce should not necessarily happen in yours.

People sometimes try to avoid the costs of a lawyer and negotiate a deal with their ex first. The risk is that without understanding what the legal position is, people can make agree to things that are not in their interests. Even if they don’t “finalise” the deal between themselves, it can be difficult to backtrack out of something once people’s expectations are set. This can be particularly damaging where the intention was to preserve goodwill.

So, as a general rule, the sooner you take legal advice, the sooner you understand your rights and entitlements, and can engage in informed negotiations.

Legal advice is private and privileged, so the other person does not need to know.

 

Do Lawyers need to be Involved in Documenting the Deal?

 

The second step is documenting a deal. The real question here is – do you want your settlement to be binding? Or are you happy to run the risk that a further claim could be made later?

While there are time limits under the Property (Relationships) Act 1976 for making a claim, the Court has the power to extend those in certain circumstances. There have been cases where claims have been permitted 10+ years out of time. So, unless people have a big appetite for risk, it is wise to obtain a binding settlement for peace of mind.

The ways to achieve a binding and enforceable relationship property settlement are:

  1. Documenting it in a Separation and Property Division Agreement, for which each party needs a lawyer to advise them, and the lawyer must sign a certificate on the Agreement; or

 

  1. Getting orders dividing relationship property from the Family Court.

95% of the time, matters are resolved amicably by the signing of an Agreement. That tends to be the quickest and most cost-effective outcome.  It is also often a condition of each party’s refinancing, if the bank or lender is aware of the separation. If there is a jointly owned property

 

For More Information

For any advice in respect of applications to the Family Court under the PPPRA, or compliance with welfare guardianship and property management orders, please contact our Rotorua family law team.

 Our Rotorua family law experts:

 

See more of our family law articles here.

 

Separation Agreement Talks between a couple