Deborah Chambers QC is one of the leading relationship property lawyers in New Zealand.
She joined Jesse Mulligan to talk about the process and pitfalls of getting a divorce.
She says the process while painful needn’t be horrific.
“Most New Zealanders do manage to avoid it being horrific because most New Zealanders are concerned for their children, and most New Zealanders are concerned for their previous partner - nobody wants to be a total shit.”
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Keeping the lines of communication open is the key to making the process as painless as possible, she says.
“Try and accept how the other person is feeling, particularly if one person doesn’t want to separate, try and not push each other’s buttons to accept perhaps that you’re the person with the better financial position and a better financial position to move out of the jointly-shared home and to respect each other’s separate spaces.”
For many people a divorce needn’t be a drawn-out process, she says
“For example, if a couple separate in a rented house and there isn’t much property they just go their seperate ways they, reach an agreement on when each parent will have the care of the children and who will pay for what. That’s very straight forward.
“And even with just a house and some cars, again it’s pretty straight forward.”
Things get more complex when there is more property to consider, she says.
“When you go into a more complex family arrangements, where it’s a subsequent relationship, where there’s separate property or step children or there’s arguments over what is in the best interests of the children in terms of day-to-day care. Then you may need an umpire on the field who makes decisions for you and that of course is a judge.”
A divorce that goes to court could take two to three years to resolve, she says.
A couple splitting their assets will both need legal guidance.
“For relationship property, division of property, you need a lawyer.”
Both sides need representation, she says, to ensure neither ends up with less than they are entitled to.
“The lawyer may identify that one person is getting ripped off by the other. They might be getting ripped off because they are financially naïve, or they don’t want to go into an adversarial fight with the other person or they might be getting ripped off because they don’t know the law.”
Debts incurred during the relationship are also shared, she says.
“You can’t get half the cake without paying for half the ingredients,” Chambers says.
“A joint debt is basically any debt that is incurred with or without your knowledge for the benefit of the household in the course of trying to acquire relationship property.
“So, you can get stung with debts you didn’t even know had been incurred.
“If your partner bought a business and owed tax or borrowed money wisely or unwisely you are stuck with that debt.”
Mediation is an effective process for resolving disputes, she says.
“I’m a great believer in it, it’s much faster than courts, much cheaper, and comes out often with much better relationships between separating spouses.”
With mediation people go in with their own lawyers, possibly forensic accountants if the divorce is financially complex, and the whole thing is chaired by, usually, a retired judge.
At the end of the process both sides have to buy in to the agreement or there is no sign off.
“Many people who have been through it say it’s a terrific way of resolving dispute.”
The cost is high, but less than going to court, she says.
"Mediators are about $5000 or $6000 dollars a day you pay half each, and sometimes the person with the property income pays that and then you’ll be paying your own lawyer’s hourly fee.
“So not a cheap process, but it’s cheap in terms of getting a quick resolution compared with court.
“These things cost money but what is the alternative? Either you don’t get a remedy, or you go to court and it costs a great deal more.”
