I was recently asked whether the vindictiveness that the inquirer’s ex had unleashed on her after the separation and when she went to Court for a Parenting order could be resurrected to stop her from getting a divorce.
The short answer was “no”.
For anyone in the same situation and wanting to keep their costs down, I set out the longer answer — it wont take 2 minutes to read.
The divorce (in NZ called a “dissolution of marriage”) itself should be manageable without giving the other side any chance to cause difficulty.
Okay, “should be” may not be good enough for you. But let me explain:
In New Zealand there is only one ground for divorce or dissolution: having been living apart two years. If you have not been living apart for two years then you cannot get a dissolution (although in some weird and extraordinary circumstances you might get an annulment which is quite different and clearly not what we are talking about). If you have been living apart for two years and can prove it then the only impediment to a dissolution is that a court can decline to order the dissolution if children of the relationship are not being properly provided for.
In your case, having been through the Family Court and ended up with definitive orders, that “delaying action” should not be available to the ex. Once again you have me using words like “should be” and “should not”, but generally if the parenting arrangements are well settled or if a Court has ruled on issues relating to the children then that defence to a dissolution should not get any traction.
Most people obtain a dissolution on a DIY basis – either jointly or unilaterally. If a couple are in agreement then a form of joint application can be obtained from the Internet (ask us or at the Courthouse if you cannot find it.) If both parties sign it, file it with the filing fee ($211.50) and a marriage certificate ($26.50) is attached, and the parties have been living apart for two years when the document is filed (and confirm that arrangements are in place for the children) – all matters that are contained on the form – the dissolution can be made within a very short time that will have effect immediately.
If you do not want to (or the ex will not agree to) do it that way then you complete the form for a unilateral application for a dissolution, provide the marriage certificate and the filing fee and lodge the documents with the Registry of the nearest Family Court which in Whangarei is in the Courthouse in Bank Street – just across the road from our offices. The court will then issue a copy for service on your ex. This next bit is the bit where “DIY” can sometimes come unstuck: the document that the court has issued for service on the other party must be served. It cannot be served by you and if the ex refuses to sign an acknowledgement of receiving it that can cause difficulties. The safest way to deal with this obstructiveness is to incur the cost of employing a professional process-server to effect service. This could cost you anything between $100 and $180. If the ex is around town and easily found then it should be around $100. The value of a process server is that they are not easily deterred and are usually able to get the signature acknowledging service. The firm we would recommend (in Whangarei: Northland Document Services) know the procedures and are known and respected in the court.
Once the document has been served then you need to prepare an affidavit of service for the process server to swear and file it in the court. The ex then has 21 days after service to file a defence. If none is filed then the court proceeds without further reference to you to order a dissolution… and in this situation usually does it on a two-step basis. The dissolution is only complete on the second step which can be shortened but could be another 21 days.
If you think that the ex will file a defence and endeavour to claim that you are not entitled to a dissolution then you need to make sure your application is watertight. So, how are you going to prove that there have been two years living apart? Ordinarily it is sufficient if you say so in the required documents.
Because DIY is the usual approach and lawyers can be pretty expensive in non-straightforward things, we would encourage you to try and do it yourself. That said, if the very thought of it let alone having to fill in the forms appals you, this might be a situation where you do want to instruct us to handle it.
First, you might simply want to get us to assist you with forms so that you can file them yourself but to consult from time to time if there are concerns or problems. Second you might want to give us the whole task.
It is reasonable to ask us to give you an estimate of the fee but may not be reasonable to hold us to that if unexpectedly all available problems are raised by the ex and the amount of work required grows and grows. If you do instruct us I would put the task in the hands of one of the two staff solicitors here who specialise in Family Court work. My charge out rate in the firm is $380 an hour plus GST. And then obviously we expect you to pay the disbursements – filing fee, process-server’s fee et cetera. The charge out rate of the two staff solicitors specialising in family court work is $280 an hour plus GST and disbursements. For completeness sake, I confirm that I supervise their work and mainly without further charge for my time.
Costs on the “first” suggestion above: we would attend you to assist you with the matter if you decide to handle most of it yourself and we would charge for the time of ours that you take. On the “second” option I would expect us to handle a straightforward dissolution, go to whoa, for around $300 plus GST and disbursements.
If any questions arise from this – which is pretty close to the full story – do not hesitate to email or ring me. Stuart Henderson