The Differences and Similarities of the Divorce Process – England & Wales vs. New Zealand
As I approach four years of living in the United Kingdom after relocating from New Zealand in March 2017, I thought I would share some of my observations on the differences and similarities between family law in both countries. Having now practiced under both jurisdictions, and being dual-qualified, there are a number of things which I believe both systems have which the other could easily benefit from.
Difference 1: In New Zealand divorce is no one’s fault, and you don’t need a solicitor
The Divorce process in New Zealand is a lot simpler than in England and Wales. Step 1 – you separate for at last two years. Step 2 – you fill in very simply paperwork (which doesn’t require a solicitor) and one month later you are divorced. No blame games, no various applications for decree nisi or decree absolute.
Of course, divorce law is due to change in England and Wales shortly which will result in no-fault divorce being introduced, but there will still be the various stages to divorce applications which need to be followed which are intrinsically linked to resolving financial matters between separating couples, because in England and Wales financial matters can’t be resolved in a legally binding way without the divorce process having been started. Which brings us on to difference two…
Difference 2: In New Zealand, resolving financial matters are completely separate to whether or not a couple are getting divorced
As referred to above, in England and Wales for a separating couple to obtain a legally binding court order dealing with matrimonial property, the divorce process needs to have been commenced and crucially, it must be at the mid-way point (known as decree nisi) which can take several months due to various delays experienced by the court system.
This can be contrasted to the situation in New Zealand, where a couple who have chosen to separate can immediately issue an application with the Court or obtain a legally binding financial arrangement regardless of whether they even intend to divorce or not. Which brings us to difference three…
Difference 3: In New Zealand, separation agreements are legally binding if entered into properly
Unlike England and Wales where the only legally binding financial order following a couple’s divorce is one which has been approved by the Court, in New Zealand a couple who have chosen to separate are not required to seek the approval of the Family Court for any settlement they have been able to reach. Instead, if the parties enter into a Separation Agreement with the benefit of independent legal advice, such an Agreement will almost always be legally binding.
Interestingly, a Separation Agreement in New Zealand will often be drafted on the basis that it is in full and final satisfaction of all claims between a separating couple, regardless of whether that couple ever actually get divorced.
Difference 4: In New Zealand, unmarried couples can obtain the same rights in law as married couples
A constant sticking point in family law here in England and Wales is that there is no such thing as the common law husband or wife, i.e. unmarried couples who live together, regardless of how long they do so for, will not provide them with the same rights as a married couple. The lack of protection for unmarried couples is often heart-breaking, especially when dealing with relationships of many years where one party has become financially reliant on the other, but owns nothing in their own name.
The situation in New Zealand is very different, as the law provides that “de facto relationships” which exceed three years will result in the couple obtaining the same rights that a married couple would in the event of separation. A de facto relationship is defined in law, but in short it needs to involve a couple cohabiting together with an element of commitment to each other.
Difference 5: The court process in England and Wales is more formulaic and, arguably, much more straight forward than New Zealand
One thing that I appreciate about the courts of England and Wales is that for both financial remedy proceedings and Children Act proceedings, the actual process is reasonably straightforward to manage. In both instances, and in 90% of cases, parties will not need to attend Court more than three times for three distinct separate hearings. The documentation which is required to be prepared and filed ahead of each hearing is standard, and as a result there is a clear pathway or route for clients to navigate forwards.
The situation in New Zealand is more discretionary, and in my personal experience there is the possibility for more hearings which can lead to proceedings dragging on for a considerable amount of time.
But what about the things that I have found are similar between both countries? Being part of the commonwealth, and the fact that New Zealand follows common law, like England and Wales, the fundamental framework of family law is reasonably similar, especially in terms of overarching principles that the courts look to apply. Which brings us to the first similarity…
Similarity 1: Following a couple’s separation, the starting point is that there should be an equal division of property
In England and Wales the starting point when dealing with matrimonial property is 50/50, with a shift one way or the other depending on a number of different factors such as either party’s income, non-matrimonial property, who cares for the children etc. In New Zealand the situation is very similar, with there being a presumption of equal sharing for marriages or de facto relationships which exceed three years.
For marriages less than three years, the starting point remains that there is a presumption of equal sharing, but the parties will have stronger arguments to move away from this. The same situation will apply for a de facto relationship of less than three years only if there has been a child of the relationship. Speaking of children, this takes us to the second similarity…
Similarity 2: When it comes to children, it all comes down to best interests and welfare
Both England and Wales and New Zealand’s respective overarching statutes which deal with children matters, have almost identical principles in that the Court’s paramount consideration is what is in the best interests and welfare of the child. This starting point makes the laws of both countries when it comes to disputes concerning children very similar, and there is also a strong focus on mediation as a first approach in both countries.
Having practiced in both countries, there are things I like from both which if combined, I believe would create a strong family law system. I like the New Zealand approach in relation to divorce, which is that it has essentially been reduced to a paperwork exercise which is both separate and inconsequential to financial matters. I also believe that the rules for de facto couples which New Zealand has would provide important protections for unmarried couples here in England and Wales.
New Zealand could also learn a lot from the system here in England and Wales, as the court process here is much more streamlined both for financial matters and children matters. Despite delays and long backlogs with the Court, one benefit of England and Wales is that you can almost guarantee a set number of specific hearings for either matter, whereas the system in New Zealand was more open-ended and less defined.
Rob Webster is a dual qualified solicitor, first admitted in New Zealand in 2015. Rob likes to take a pragmatic approach to work and takes care to always be available to his clients to assist them in what is often the most stressful period of their lives. He is committed to providing the very best client service and is available to assist in all aspects of family law, including divorce, finances, children matters and cohabitation disputes.