--- title: "What is a separation agreement? | Wakatipu Chambers" description: "A separation agreement records the date you separated and the practical decisions about property, children and finances. Used well, it saves the cost and stress of fighting it out later." url: https://barristers.net.nz/services/family-law/separation-agreement/ --- # What is a separation agreement? > A separation agreement records the date you separated and the practical decisions about property, children and finances. Used well, it saves the cost and stress of fighting it out later. A separation agreement is a written contract between two people whose relationship has ended, recording the date of separation and how the practical issues — property, children, finances — are going to be handled. It is one of the highest-leverage documents in family law: a well-drafted agreement closes the door on most of what would otherwise become Family Court litigation. ## What it is In New Zealand, separation is a question of fact: the relationship has to have ended in substance — separate lives, separate finances, separate intentions. A separation agreement does not create the separation; it records it. Couples can be "separated under one roof" while still living in the same property if the relationship has genuinely ended, and a separation agreement can pin down the date that started. Most separation agreements do two things at once. They confirm the date of separation (which matters later for divorce, the two-year clock, and limitation periods) and they document the agreed approach to relationship property, care of children, and any spousal support. The agreement itself does not dissolve the marriage or civil union — that is a separate court application after two years. - Records the date the relationship ended in substance - Documents agreed approach to property, children and finances - Does not dissolve a marriage — divorce is a separate application - Useful even where the parties agree on everything, as evidence of the agreement ## Separated under one roof — what counts? Many couples cannot afford to move out the day the relationship ends. The PRA and the Family Proceedings Act both recognise that you can be legally separated while still sharing the same address, provided the relationship has substantively ended. The court looks at how you actually live, not where you sleep. If you plan to apply for divorce after two years, you may need to prove you have been living separate lives even while in the same house. The clearer the evidence, the easier that application is. - Sleeping in separate rooms - No longer sharing meals or household responsibilities - Not socialising or attending events as a couple - Informing family and friends that you have separated - Separating jointly held property and using individual bank accounts ## What goes in it A typical separation agreement covers four areas. First, the financial split: the family home, KiwiSaver contributions during the relationship, joint accounts, vehicles, businesses, debts, and any decisions to depart from the default 50/50 rule under the Property (Relationships) Act 1976. Second, the arrangements for any children: where they live, how contact is shared, how the bigger decisions get made. Third, any agreed spousal maintenance — usually time-limited where one partner needs support to get back on their feet. Fourth, the date of separation and any acknowledgements about how the parties got there. What does not need to be in it: matters that are not in dispute or that the parties want to keep flexible. The agreement is not a ceiling — it is a record. Anything missing from it remains open to negotiation or, if necessary, the court. - Property and debt division (relationship property under the PRA) - Parenting and contact arrangements - Spousal maintenance, where appropriate - Date of separation and any background acknowledgements ## Legal requirements for it to be binding A separation agreement that deals with relationship property has to comply with section 21F of the Property (Relationships) Act 1976 to be enforceable. That means: it has to be in writing, signed by both parties, each party must obtain independent legal advice before signing, and each party's lawyer must certify on the agreement that the advice was given. The agreement must also have been entered into voluntarily — without pressure or coercion. Without those elements, the property side of the agreement can be set aside by the Family Court. The independent-advice requirement is not a formality. It is the most common reason agreements get set aside later — usually where one party "agreed" under pressure, or did not have the chance to talk through what they were giving up. If both parties try to use the same lawyer, the agreement is not enforceable. The parenting parts of the agreement work differently. Parenting arrangements between separated parents always remain reviewable by the Family Court if a child's welfare is at issue — the court does not consider itself bound by what the parents wrote down. In practice, well-drafted parenting clauses are still followed almost all of the time, but they are not iron-clad in the way the property clauses are. - Must be in writing and signed by both parties - Both parties must take independent legal advice - Each party's lawyer must certify the advice was given (s21F PRA) - Must be entered into voluntarily — no pressure or coercion - Parenting clauses remain reviewable by the Family Court if the child's welfare changes ## When you need one (and when you don't) You need a properly drafted separation agreement any time relationship property is being divided differently from the default 50/50 rule, or where there is real value at stake — a family home, a business, KiwiSaver balances, an inheritance brought into the relationship. Without an enforceable agreement, the default rule applies whether the parties want it to or not. Timing also matters. The PRA treats short-duration relationships (under three years) differently — the equal-sharing rule does not apply automatically, and the partner who brought more assets in has a stronger position to retain them. Recording the date of separation early, and getting the agreement in place before things drift, can be the difference between holding onto pre-relationship assets and arguing about them later. You may not need a full agreement if the relationship was short, finances are simple, and the parties have already split everything by handshake. In those cases, a short written record of the date of separation and the basic arrangements is often enough. The cheaper option for simple matters is sometimes the right one. ## Common mistakes we see The first is signing without independent legal advice — usually because one party wants to "save money" or "keep it amicable." It almost always backfires: the agreement is not enforceable, and the months of certainty the parties thought they had bought are lost. The cost of two lawyers up front is a fraction of what re-litigating costs. The second is leaving out KiwiSaver. People forget it, or they think it is "their" money because the contributions came out of their pay. Contributions made during the relationship are relationship property under the PRA. If they are not addressed in the agreement, they remain on the table. The third is treating the parenting clauses as binding forever. Parenting arrangements have to flex with the children's changing needs — school, age, where everyone is living. A well-drafted agreement builds review points in rather than pretending the day-one arrangement will last to age 18. - Skipping independent legal advice — the agreement won't be enforceable - Forgetting KiwiSaver contributions made during the relationship - Treating parenting clauses as permanent rather than reviewable - Not recording the date of separation clearly Part of: [Family Law](https://barristers.net.nz/services/family-law)