Divorce, Pets, Property and Emotions

Recent studies show that an average of 43% of modern day marriages in New Zealand end up in divorce. This statistic is not exactly encouraging, especially if you are about to get married or just got married. However, life does happen and at times couples do become incompatible, leading to divorce. It is no secret that the entire process of divorce can be emotionally charged, exhausting, and financially draining. The fact that divorce tends to be emotionally intensive can obscure your ability to make important decisions or even comprehend the legality of it. This is why you need legal advice and to be prepared with information if you are considering a divorce. Below are several tips that will help guide you in making informed decisions should you be thinking about a divorce:

1. When is the best time to file for divorce?

The important thing to remember is that divorce is life-changing in a huge way. You will probably need to adjust your living arrangements, make decisions about money and property and if you have children, make decisions about their day-to-day care as well. You, therefore, need to be very sure before you want to file for divorce. Take your time to think about it. It is recommended that you consider the decision for about 18 months before filing. During this period, you can work on your relationship with your partner and if at the end of it nothing is resolved, then file for divorce. In short, the last thing you want to do is file for divorce on impulse.

2. Keeping emotions in check

Most divorce lawyers will admit that divorce proceedings are easier and amicable when there are no raw emotions. They, therefore, advise that you file for divorce after having been separated for a considerable period of time. This way, you will have had enough time for your anger and other emotions to simmer down. Remember that emotions blur perspective. You do not want to walk into your divorce proceedings when you are still overly-emotional about breaking up with your partner or the events that led to the breakup.

3. Who gets the pets and what to do with them in the interim

The law in New Zealand considers pets as property. The Relationships Property Act lists household pets as family chattels, implying that they should be divided equally. Technically, where a couple cannot agree on who gets to keep a family chattel, it should be sold and the proceeds shared equally between the two. However, this becomes problematic when the property in question is a cat or a dog.

In previous cases, the court has directed the disputing couple to come up with an agreement by themselves. The court has however highlighted that while household pets actually are family chattels, their welfare should form the basis of any agreement to be made.

In recent years, however, judges are creating precedents regarding pet custody that forego the provisions of the Relationships Property Act. Courts are now increasingly considering whom the pet spends most of its time with and who is its primary caregiver, just like in child custody cases. Somecourts have awarded joint custody for the pet in dispute or granted the non-custodial owner visitation rights. While these are definitely reasonable awards, there exists to Legal Authority to enforce and monitor such verdicts.

There is not much to say with regards to who gets to keep the pet during the ongoing of divorce proceedings. It is basically up to the couple to try and come up with a system that works best for them. An option is long or short term accommodation with a cattery or kennel, until you know where your pets will be settled.

4. How property gets split up

For many people considering divorce, this is the million dollar question. Several principles determine how the courts in New Zealand decide to split up a property. These include:

Property is shared equally as each partner is regarded as having contributed equally to its acquisition. Both men and women are equal in status.No regard is given to who is responsible for the break down of the marriage/relationship.Unpaid work, like looking after the home and catering to the children is regarded as being equal in value with paid work.

For couples that have been married for 3 years or more, property is divided equally. However, the court has the discretion to decide otherwise especially if the decision to split relationship property equally may be unfair to one party in the long run.

For marriages that have lasted less than 3 years, several things have to be taken into consideration such as:

If one partner has made a considerably greater contribution than the other to the marriage. Property received as a gift or inheritance under a will during the marriage. What was owned by each of you individually before the marriage.

For short-term marriages, relationship property is then divided accordingly based on the considerations indicated above.

5. Prenups

It is impossible to talk about splitting property during divorce without throwing in a little something on prenups, as they have become increasingly common. It’s important to note that a prenup can only be enforced effectively if the proper negotiation process was followed during its drafting. Both parties also have to have been legally represented during the drafting of a prenup for it to be valid. Despite the fact that prenups are not fully binding, they are definitely highly persuasive.

6. Hiring a family lawyer

As indicated earlier, divorce is a highly sensitive process and you, therefore, need a family lawyer who will protect and defend your rights effectively. The most reliable method to use when looking for a family lawyer is through a referral. Look for someone who’s gone through a divorce successfully before you and have them refer you to their lawyer. Also, ensure your lawyer of choice has specialised in family law. Specialty indicates enhanced knowledge and skill. Most importantly, ensure you hire a family lawyer who is within your means.

7. Legal Aid

The New Zealand Government has a legal aid scheme in place to help people who cannot afford legal representation on their own hire a lawyer. While the government does not provide legal aid for divorce proceedings, it does give legal aid for other family law disputes such as relationship property, child custody, support and maintenance. To be eligible for legal aid, you have to pass a means test showing that you currently do not have the capacity to pay for your own legal representation. Once you have qualified, however, you may eventually have to pay back your legal aid costs with time.

In conclusion, ensure you maintain an open relationship with your divorce lawyer. Avoid concealing any facts, however small from him/her as they may turn out to be extremely crucial to the entire process in the long run. Keep an open mind and remember to stay calm during the process. Being anxious or overly emotional will only make it harder and more draining for you.