New Zealanders are having to quickly adjust to a new normal as we face the COVID-19 crisis and the introduction of "alert levels" which greatly restrict the way we live. "Bubble" is a term coined by our Prime Minister to describe the group of people who make up a household. For the four weeks (at least), we are all under strict orders to stay in our bubble and stay home. This drastic change to our way of living is guaranteed to bring about new challenges.
We often see a spike in separations following long periods where couples spend more time together, such as Christmas or Easter, which can exacerbate underlying issues in relationships. Many are predicting that New Zealand's lockdown will similarly see relationships put under strain as couples are forced to isolate within their household bubble. This has played out in China where, as Newshub.co.nz has reported, there has been an unprecedented spike in divorces following the country's mandatory lockdowns. Conversely, people may be less inclined to leave an unhealthy relationship in times of such uncertainty.
Whatever the case may be, the team at Wynn Williams are here to help you navigate through any 'bubble trouble' that may arise. Below we have set out some questions that have arisen as a result of the current lockdown and answers to those questions. We have kept our answers brief, but please call the team on 027 303 5705 if you require further advice.
We will continue to add to these questions and answers over the coming weeks and if you have a burning question of your own, please email your question to andrew.watkins@wynnwilliams.co.nz and we will endeavor to answer it in our next update.
I want to have a "clean break" separation from my partner, but the value of our house has dropped significantly so it is not a good time to sell and neither of us want to retain the house. What can I do?
"Clean break" settlements are usually achieved by either one party purchasing the property, or the property being sold and the proceeds split.
If you are concerned about selling your house now, because of a sudden potential reduction in value then you can agree to market and sell the property at a specified date in the future with the proceeds to be split in accordance with your separation agreement. In the interim, you will need to decidewhether you will rent the property or if one of you will live at the property and pay occupational rent. This can all be provided for in your separation agreement and is known as a "staged settlement".
If you want to achieve an immediate clean break settlement, and neither of you wish to purchase the property, your only option is likely to be to take the hit on the value and sell the house now.
What does the lockdown mean for shared care arrangements?
The general rule is that, under Alert Level 4, children whose parents live within an hour's drive of each other can continue to go between two homes if you have a shared bubble arrangement. Your shared bubble can extend to no more than two homes and parents from different households must remain more than two metres apart at all times.
Helpfully, the Government and the Principal Family Court Judge have now released very clear guidance on shared care arrangements which can be found on the justice.govt.nz website here and The District Court website here.
Once New Zealand is moved down to Alert Level 3, the guidance is that people should continue to stay within their immediate household bubble, but can slightly extend this bubble to reconnect with close family / whanau, or bring in caregivers or support isolated people provided they live locally.
Can I commence proceedings against my spouse during the lockdown?
Only urgent proceedings, for example those concerning personal safety and the wellbeing of children, can be heard during Alert Level 4 and this includes (but is not limited to):
- protection orders;
- interim custody/care orders;
- those involving vulnerable parties such as welfare guardianship or property orders under the Protection of Personal and Property Rights Act; and
- those arising out of social dysfunction and family harm.
If you believe your matter is urgent, please get in touch with us and we will confirm.
Non-urgent matters can still be filed electronically during the lockdown.
I've been living with my partner for almost three years, how can I protect my assets when I can't see my lawyer during lockdown?
Despite the national lockdown, and the anticipated Alert Level 3, Wynn Williams is still operating remotely and is able to take your instructions via email, telephone calls and Zoom. We are also able to draft and execute an agreement during this period. If you have any questions, please get in touch.
I want to separate from my partner, but I am not sure how I will afford to live – my income is minimal compared to his, even when he is only on 80% due to lockdown?
You may be eligible for spousal maintenance from your partner, whether you are married, in a civil union or de facto relationship of more than three years. It may be available where you require this financial support to:
- become financially self-supporting;
- maintain the standard of living you had throughout the relationship; or
- undertake further education to improve your income capacity.
When you do receive spousal maintenance from your partner, it will not be for an indefinite period and you will be expected to take steps to assume responsibility for meeting your own needs as you can. The quantum and period of spousal maintenance will depend on your individual circumstances such as your joint financial means and the standard of living you kept during the relationship.
Please note that child support is separate from spousal maintenance, and you may also have entitlement in this regard. Our team is also available to assist with advice about child support.
We had executed a binding separation agreement but now cannot comply with the terms and timeframes due to lockdown – where does our agreement stand?
The best approach to try first is to mutually agree to vary the terms of the agreement.
If you cannot reach agreement on a suitable variation, you may need to apply to the Court to set aside the agreement on the grounds that it has become "seriously unjust" or conversely seek to enforce the agreement. The ability to take either of these steps will depend on your individual facts and the terms and clauses of your agreement. Courts decide these matters on a case by case basis.
Our team is well equipped to consider your agreement, provide advice and then see through the process of either enforcing the agreement or seeking to have it set aside, if those steps are warranted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
