Navigating your way through a separation during COVID-19
Navigating your way through a separation during COVID-19
Wednesday 22 April, 2020
What happens if I separate during the COVID-19 lockdown?
COVID-19 has caused widespread disruption throughout New Zealand, with the majority of New Zealanders currently confined to their homes during the Alert Level Four lockdown. For a number of people, this is a stressful and uncertain time, particularly if relationship difficulties surface. If you find yourself in a situation where you have separated, or wish to separate, from your partner, we have a team of family law experts who can assist you. We have the knowledge and expertise to guide you through any legal issues that arise.
How are Tompkins Wake working during COVID-19?
For the most part, it is business as usual for Tompkins Wake. Our family team are working remotely and are fully functional. We are available by email or phone during business hours. We are also able to conduct any meetings by way of Skype, Zoom, or Microsoft Teams if this is your preference.
Is the Court operating during this time?
During the Alert Level 4 COVID-19 lockdown period, the Family Court is only hearing matters they have deemed to be "priority proceedings".
The selection of priority proceedings are guided by the following principles:
- Liberty of the individual;
- Protection of the at-risk or vulnerable, including children;
- The national and community safety interest;
- Facilitating and promoting public order.
What this means is that Court appearances will only go-ahead for the following Family Court matters:
- Mental Health;
- Protection Orders;
- Interim custody/care issues involving children;
- Cases involving vulnerable parties such as those who have lost capacity (commonly due to disability or dementia), i.e. applications for a welfare guardianship or property order is necessary under the Protection of Personal and Property Rights Act 1988.
All Court appearances, including conferences and hearings, will be attended by lawyers, clients and any witnesses by way of audio-video link or telephone where possible. If facilities are not available to facilitate this, lawyers, clients and witnesses can appear in Court in person, with social distancing rules in place.
Chief Justice, Dame Helen Winkelmann, has advised on 8 April 2020 that all Courts should continue to function to the fullest extent they safely can. The Chief Justice has also set out that there are no restrictions on the filing of documents. This means that Family Court Registries around the country are still accepting the filing of all court documents, regardless of whether they are considered priority proceedings or not.
What this means is that the Court are not hearing non-urgent parenting matters, relationship property matters or applications relating to estates or trusts. We can still file proceedings for these types of matters, but the Court are unlikely to progress them any further under the Level Four COVID-19 lockdown period.
What does the law say?
The Property (Relationships) Act 1976 (“the PRA”) is the key piece of legislation governing the rules that apply to property for couples who separate, including separation through death.
The PRA sets out that if you are married, in a civil union or in a de facto relationship, and have lived together as a couple for at least 3 years, there is a presumption of equal sharing of relationship property assets and debts. There are some exceptions to this rule, we can advise you if these exceptions apply to you.
Relationship property includes all property acquired during the relationship. It does not matter if the asset is in your sole name, your partner’s name or your joint names, it is generally still considered relationship property if it was acquired during this period. Again, there are some exceptions which we can discuss with you if they apply.
Relationship property and relationship debts include:
- Either partner’s income,
- The family home,
- The value of each partner’s Kiwisaver attributable to the relationship,
- Bank accounts, including in either partner’s name or joint bank accounts,
- Public and private shares in companies,
- Household furniture/appliances,
- Any mortgages secured over the family home,
- Credit cards,
- Finance over vehicles,
- Student loans if acquired during the relationship.
If you have a family trust or business trust, we can also give you advice about what other claims can be made against your trusts.
What steps do I need to take to resolve matters?
Although the Courts are not hearing any relationship property matters, there are still practical steps we can take to resolve matters, such as establishing the relationship property pool, entering into negotiations with other parties and lawyers, and if agreement is reached, drafting a relationship property agreement.
We can also prepare relationship property proceedings and file them with the Court.
A) The relationship property pool
The first step is to identify the relationship property pool to establish what relationship property assets and debts existed as at the separation date.
Full disclosure of the assets and debts owned in personal names and joint names as at separation will need to be made. A lot of this information may be able to be obtained online, such as bank statements or credit card statements.
If your separation is fairly amicable, the next step may be an exchange of proposals for the division of relationship property. During the lockdown this can be attended to remotely by emailed correspondence or by telephone.
C) Relationship property agreement
If agreement is reached a relationship property agreement recording the agreed division of property can be prepared.
For a relationship property agreement to be binding, the PRA requires:
- The agreement must be in writing,
- The agreement must be signed by both parties,
- Each party must have had independent legal advice from their own lawyer before signing,
- The signature of each party to the agreement must be witnessed by a lawyer,
- Each lawyer who witnesses the signature of a party must certify that, before that party signed the agreement, the lawyer explained to that party the effect and implications of the agreement.
While we are at Alert Level Four it is not possible for parties to sign agreements in the presence of their lawyers. However, provided both parties and their lawyers agree, and it is appropriate in the circumstances, a relationship property agreement could be signed remotely by Skype or other video conferencing facility.
D) Court proceedings
If no agreement can be reached, Court proceedings may be necessary. We are able to prepare the documents necessary and file court proceedings while at Alert Level Four.
What does the law say?
The Care of Children Act 2004 (“COCA”) is the key piece of legislation that governs disputes over children. COCA sets out that the welfare and best interests of a child in their particular circumstances is the paramount consideration for the Court.
The principles the Court will consider when deciding what is in the child’s welfare and best interests are:
- A child’s safety must be protected, and in particular, a child must be protected from all forms of violence from all persons, including members of the child’s family and family group;
- A child’s care, development and upbringing should be primarily the responsibility of the child’s parents/guardians;
- a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents/guardians;
- a child should have continuity in his or her care, development, and upbringing:
- a child should continue to have a relationship with both of his or her parents, and a child’s relationship with his or her family group should be preserved and strengthened:
- a child’s identity (including his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
The COCA sets out that it must not be presumed that a child should be placed with any person because of that person’s gender. What this means is there is no automatic assumption that it is best for children to live with either their mother or father. The law does not dictate who should care for children, it simply considers what is in the children’s welfare and best interests. This means that each case is decided on its merits.
What works best for each family will be different. For some, a shared care arrangement works best. For others, the children living with one parent during the week and having contact with the other parent during the weekend or school holidays works best. In some circumstances, where the Court have deemed that serious safety issues exist, a parent may need to have supervised contact with their children until they can prove to the Court that the children are safe in their unsupervised contact. It is not uncommon for parents to disagree on what arrangements works best for the children. We can give you specific advice on the options that exist and discuss what you consider is best for the children.
What steps do I need to take to resolve matters?
The Court are only hearing urgent “without notice” parenting matters during the Level Four period, however we can progress other non-urgent matters by entering into negotiations with other parties and lawyers and, if agreement is reached, draft a Parenting Agreement or apply for consent Orders.
We can also prepare and file non urgent parenting proceedings during this period.
If things are fairly amicable, the first step would be to correspond with your ex-partner, or their lawyer if they have instructed one, to see if matters can be resolved by agreement. In a large number of cases, parents are able to work together to reach an agreement. Mediation is available for parents as a form of alternative dispute resolution. Information about mediation is available on the Family Court website, or we can provide details to you (via video conferencing).
B) Agreements and Consent Orders
If an agreement is reached, we can do the following:
- Draft a Parenting Agreement that records the terms of the care and contact arrangements for the children; or
- Apply by consent to the Family Court for a Parenting Order. This is an Order issued by the Court that sets out the terms of care and contact arrangements.
The difference between a Parenting Agreement and Parenting Order is that only a Parenting Order is legally enforceable if it is breached. If a Parenting Order is breached by your ex-partner and they retain the children, you can apply to the Family Court to have the order enforced and the children returned to you.
C) Court applications
I) “On notice” applications
In some circumstances, a Court application is necessary. If an agreement cannot be reached, or matters are not progressing, we would need to make an on notice application to the Family Court for a Parenting Order. It is considered “on notice” as your ex-partner will get notice of it, they will be served and have a chance to respond before the Court makes a decision.
We are able to file on notice applications during Level Four lockdown but it is unlikely the Court will progress the matter further until the Level Four lockdown is lifted.
II) “Without notice” applications
In some cases, there may be grounds to make an urgent application to the Court. This urgent application is called a “without notice” application. Your ex-partner will not have a chance to read the application or respond to it before it goes before a Judge and a decision is made. If the Judge considers it appropriate, they will make temporary/ interim orders. Once the judge makes a decision, your ex-partner will then be served and have a chance to respond.
This is reserved for the most urgent cases, where there is a risk of serious injury, a risk to personal safety or a risk of undue hardship to you or your children. Some examples of this are where children are being exposed to family violence, either by witnessing it or violence against them directly, exposure to drug or excessive alcohol use or an otherwise unsafe living environment.
During the Level Four lockdown, we can file these applications and they will be dealt with urgently by the Court.
We will discuss this option with you if we consider it applies to you.
What happens during Alert Level Three?
The Family Court have signalled that during Alert Level Three, the Court should function to the fullest extent it safely can. The Court will aim to ensure that the backlog of cases that accumulate over the Level Four period do not cause New Zealanders unnecessary delay or injustice. The cases that fall under the category of “priority proceedings” will continue to be dealt with first, however the Court will hear cases outside of this category to the extent the Court’s capacity permits.
How to contact us?
If you are thinking of separating or have separated from your partner and would like us to give you advice, you can contact us via our website, https://tompkinswake.co.nz/expertise/relationship-pr/ You can either use our online application on our website to contact us or ring one of our lawyers or legal assistants directly.