Q: My partner and I are in love but I'm in New Zealand and he has been stuck in Australia due to Covid-19. We want to get married later in the year in New Zealand. My partner, however is still married, he is separated but not yet divorced. Is it okay if we get married before his marriage is formally over?

I own my home in New Zealand and want to keep that protected from our new relationship. How do you think I should go about this legally and should I tell my new partner at all?

A: Starting a new relationship and marriage can bring to light a range of legal issues which can be difficult to understand and, even more so when you are living in different countries. This situation is becoming more common due to the global pandemic.

Marriage

In New Zealand most people over the age of 16 can get married, you do not need to be a New Zealand citizen. You cannot legally marry if one of you is already married or in a civil union with another person. So, your partner needs to finalise their divorce before you two can marry.

How your partner applies for a divorce would depend on his circumstances.

Applying for a divorce in Australia

To apply for a divorce in Australia your partner and his current spouse need to have been separated for at least 12 months and be either an Australian citizen, live in Australia and regard Australia as their permanent home, or ordinarily live in Australia and have been living there for at least 12 months before the divorce application.

If your partner and his current spouse were married for less than two years there are some extra hurdles to jump, which include counselling.

Divorce in New Zealand

In New Zealand your partner and his current spouse would need to have been separated for two years and one of them would need to be domiciled (live) in New Zealand.

This does not mean they need to live in New Zealand at the time they apply for a divorce. You can still be domiciled in New Zealand if you were born in New Zealand but are living or working in another country and are not planning to stay there indefinitely. You can be domiciled in New Zealand if you were born overseas but live in New Zealand permanently.

Applying jointly or on your own for divorce

In both New Zealand and Australia your partner could apply for a divorce jointly with his current spouse or separately. In both cases it would take some time for the application to be processed. That could take a period of two to three months or even longer.

What happens if he remarries before divorce?

If your partner marries you before his divorce is finalised he commits the crime of bigamy. Bigamy is the act of a person who, being married, goes through a form of marriage or civil union with a third person;

Everyone who commits bigamy is liable to imprisonment for a term not exceeding seven years under s206 of the crimes act 1961, and is a very serious offence.

Asset protection

It is sensible to consider what the repercussions of your marriage will be on your assets, particularly if your partner is going to move in with you once he comes to New Zealand.

In New Zealand what happens to a couple's assets when they separate is governed by the Property (Relationships) Act 1976. Generally, once you have been married for three years your "relationship property" is subject to equal division. There are special rules for short duration relationships.

Relationships of three years or more - equal division

If you were married or in a de facto relationship for three years or more and you and your partner lived in your house in New Zealand, this would be treated as the family home and your partner would be entitled to half the value of the property if you separated. It would not matter that you owned the property prior to your relationship or that it was owned in your sole name, because the law gives a special status to the family home.

Relationships of less than three years - contributions based

If you were married or in a de facto relationship for less than three years, that is considered a relationship of short duration. Property is generally divided on the basis of contributions to the marriage or civil union rather than shared equally where one spouse's contribution has been clearly greater than the others. Division of relationship property is more complex in this case because it becomes a more factual inquiry concerning each parties' contributions.

Separate property

The property would be protected if you did not live in the property or contribute any of your joint property or your income to the property during the relationship - essentially if you kept it separate from your relationship. Excluding the family home and chattels, your pre-relationship assets are your separate property.

Pre-relationship property can become relationship property

However, pre-relationship separate property can become relationship property when it is not kept separate from your relationship. If your joint property, income or your partner's efforts contribute to separate property, then this can give rise to a claim. An example might be if your partner built a deck out on your existing property or contributed to the mortgage. Depending on the circumstances it may be difficult to keep matters separate.

Pre-nuptial agreement

The best way to protect assets is by entering into a pre-nuptial agreement. This type of agreement preserves your pre-relationship assets while also allowing for you and your partner to accumulate wealth together during your relationship. It may be an uncomfortable topic to broach but it is the best form of protection and means each party has a clear understanding at the start of the relationship. These agreements need to be updated on a regular basis to reflect any changed circumstances.

As part of this process, you and your partner need to engage separate lawyers to get independent legal advice. While there is some expense in entering an agreement now, it would pay off in the long run and give you security.

Summary

In order for your marriage to your partner to be legal, his divorce needs to be finalised first or you are committing the crime of bigamy which has serious consequences.

In regard to your property, you and your partner should consider signing a pre-nuptial agreement in order to protect the assets that you each bring into the relationship and create certainty.

This article was first published by the NZ Herald.