Separation Advice – How to protect your property when you first separate

10 October, 2012 | Smith and Partners

Article updated April 2024

Separating from your partner is a painful time, and there can be many things to think about and organise. It is easy to overlook the legal steps you should take to protect you and your family.

You may think that there is nothing “legal” to be done until it is time to divorce, but in order to protect your assets, you should consider the following immediately upon separation.

Notices of Claim

All property, including cars, houses, bank accounts and shares should be checked to ensure that they cannot be disposed of or debts increased without your consent. For example, if your name is not on the title to your home, your partner could sell the property before you agree on how to deal with it. In these circumstances, a lawyer can register a notice of claim, to prevent your ex-partner or spouse from doing anything with the property without your agreement.

Update your will

You should review your will, and make any necessary changes to ensure your property would pass according to your wishes. Often your previous will leaves everything to your now former-partner. If you do not amend your will, or you do not have a will, your partner would still inherit in the event of your death. This can happen even if you have been separated for a long time.

In this situation, if you had children, they may have to engage in costly and stressful estate litigation against your former partner in order to challenge the will.

If you change your will, you should still be aware that until you formalise the division of your relationship property, your partner will still be entitled to make an estate claim upon your death.

Sever any Joint Tenancy

Usually, the title of any residential or commercial property you own with your partner or spouse will be listed as a joint tenancy. This means that the property will automatically pass to your ex-partner in the event of your death, regardless of what is stated in your will. A lawyer can amend the title to be “tenants-in-common” on the instruction of either party. Your share of the property will no longer automatically pass to your partner upon death, instead it will be part of your estate, to be dealt with according to your will.

Determine Separation Date

If both parties agree, it is best to formally confirm the agreed separation date in writing (even an email or text exchange can be sufficient) as this can have significant legal consequences. If you can not agree on the date, engaging a lawyer to help you understand the potential consequences of this on your relationship property is vital. If this cannot be resolved by negotiation as part of formalising an end of relationship agreement, you may want to consider applying for a Separation Order. In the past, Separation Orders were used to formalise the legal separation, including the “right” to live apart. These days they are mainly useful to determine a legal date of separation when there is a dispute over the date. A lawyer can help you determine if this is a useful step for you.

Formalise your division of property

Regardless of separation, or even legal divorce, a former partner or spouse will have rights to claim against your property and your estate until there is either a formal end of relationship agreement pursuant to Section 21 of the Property (Relationships) Act 1976, or Court orders dividing your property. Whilst there are some time limits on doing so, the Courts have the discretion to extend these sometimes many years after separation. Steps to resolve the division of your relationship property should be progressed as soon as possible.

There are strict legal requirements that need to be met in order to make an end of relationship agreement binding. Engage a skilled family lawyer to ensure you and your family are protected from future claims during your lifetime, and after your death.

Remember: Early and specialist legal advice is your best protection in a separation.

Do you need assistance with a separation issue? Do you need to take steps to protect your property?

If you would like to become a client of Smith and Partners and get help with your separation, please contact our family team on 09 837 6883 or email partners@smithpartners.co.nz to set up an appointment to discuss your separation.

We will require a retainer to be paid prior to your first meeting, and we cannot assist with legal aid matters.

Please note that in accordance with our obligations under the Lawyers and Conveyancers Act 2006, we cannot provide legal advice unless you have become a client of Smith and Partners and have received our Terms & Conditions of Engagement and Info for Clients.