13/08/2026
What happens when we separate? Do we really need a separation agreement?
Dividing assets and relationship property isn't the same as being legally separated. Without a Separation Agreement, you're exposed to claims on your property, sometimes years down the track and you lose the certainty that lets you move on cleanly.
What Is a Separation Agreement?
A Separation Agreement is a written contract confirming that you and your ex-partner have separated and recording how your relationship property will be divided. It's the most common way to resolve relationship property matters without going to the Family Court.
What Counts as Relationship Property?
Under the Property (Relationships) Act 1976, relationship property generally includes assets and debts acquired during the relationship, such as:
• The family home, regardless of whose name is on the title
• Other property interests
• Bank accounts and savings
• KiwiSaver
• Vehicles and personal items
• Business interests or investments acquired during the relationship
• Relationship debts
Separate property (owned before the relationship, or inherited, for example) can become relationship property depending on how it was used or mixed in during the relationship, so getting the classification right matters.
Why a Separation Agreement Matters
A well-drafted agreement gives you immediate clarity on who keeps what and helps prevent disputes or surprise claims later. It also means banks, lawyers, and other third parties can rely on it when refinancing or transferring property. Most importantly, it lets you both move forward with confidence.
A few reasons it's worth the cost, beyond simply ruling out a future claim:
• Some solicitors won't release the net sale proceeds without one. If a solicitor pays out net sale proceeds and one party later claims they weren't entitled to that split, the solicitor who released the funds can potentially be pursued too. In practice, a signed agreement is often a prerequisite to getting the money released at all.
• It severs them financially, not just legally. Even after you've sold the family home, if you haven't signed a separation agreement, your ex-partner could still make a claim, for example, against your KiwiSaver, two years later. A signed agreement closes that door.
• It's cheap insurance against a much bigger cost. If a dispute did arise down the track, resolving it without a binding agreement in place is an expensive process.
What Makes It Legally Binding?
For a Separation Agreement to be enforceable, you and your ex-partner must each:
1. Receive independent legal advice from your own lawyer (not the same lawyer for both of you), and
2. Sign the agreement in front of that lawyer, who certifies they've explained its effect and implications.
If these steps aren't followed, the agreement won't meet the requirements of the Act, and won't be binding.
Can a Justice of the Peace Sign a Separation Agreement?
No. We've seen a growing number of clients ask this, so it's worth addressing directly: a Justice of the Peace cannot certify a Separation Agreement. The Act requires certification from an independent lawyer who has explained the agreement's terms to each party, a JP doesn't meet that requirement, no matter how the document is witnessed.
What Happens If There's No Agreement?
Without a valid Separation Agreement or Court order, the default position under the Act applies: relationship property is generally divided 50/50. If you and your ex-partner can't agree, the matter may need to go to the Family Court. Most couples prefer to avoid that route, opting instead for a negotiated, properly documented agreement.
Talk to Us About Your Separation Agreement
Everyone's circumstances are different, and getting the agreement right the first time is far cheaper than untangling a dispute later. If you're separating and unsure where to go from here, get in touch with our family law team for a confidential chat about your options.
