Q & A: Relationship Property
Relationship Property
Q: My partner and I have recently separated and I am wanting to divide property. Some of the properties that we purchased together during the relationship are owned by my partner’s family trust. I am a beneficiary of the trust but not a trustee. I want to protect my interests in these properties but don’t know how.
A: We would need to look at the Trust documents and discuss further the details around the purchase of each property. However, we can lodge a notice of claim against the properties to protect your interests in the meantime. If you would like to discuss this further, please phone the office and make an appointment to speak to someone.
Separation Agreement
Q: My husband and I are separated. We have been able to reach agreement (verbally) between ourselves regarding division of all property. Do we need to record this somehow for the agreement to be legally binding?
A: Section 21F of the Property (Relationships) Act 1976 (“Act”) sets out a list of requirements with which an agreement must comply in order for it to be valid under the Act. We would be happy to discuss these requirements with you further and prepare an agreement on the basis of the agreement reached between you and your husband, bearing in mind that your husband will need to obtain independent legal advice from another lawyer. If this is something that you would like to discuss further, please contact our office to make an appointment.
Sale of House Proceeds
Q: How do I legally recognise the agreement my ex-wife and I have made that I will get 70% of the proceeds from selling our house and she will get 30%?
A: The Property (Relationships) Act 1976 provides that in most cases when parties separate/divorce each will receive an equal share of the relationship property. You must ensure any contract you enter to record the agreement for dividing relationship property meets the requirements of section 21F of the Property (Relationships) Act 1976; otherwise the contract might not be legally enforceable.
Relationship Property
Q: Why can’t you act for me and my ex-husband to finalise our relationship property agreement?
A: Section 21F of the Property (Relationships) Act 1976 sets out the criteria that must be met for any contract for relationship property to be valid and enforceable. One of these criteria is that ust receive independent legal advice about the effect and implication of signing a relationship property agreement. For this reason we are unable to act for both parties to an agreement.
Divorce
Q: I want to get a divorce.
A: When clients say they want a divorce, they are sometimes referring to division of relationship property and at other times dissolution of marriage. These are two separate things. If you want to dissolve your marriage, you can make an application two years after you have been separated and you do not need to get a separation order. However, if you require assistance of division of relationship property or care arrangements of children, please do come and see us we would be happy to help.
My marriage is over
Q: My wife and I have decided that our marriage is not working. I have moved out of the family home. We have two little boys, aged 2 and 4. My wife has agreed that I will get the kids from Wednesday to Friday each week. Do we have to make this agreement through the Courts? I am not sure what the usual procedure is.
A: Thank you for your email. I am pleased to hear that you and your wife have been able to reach an agreement yourselves. If you want to record this agreement, a lawyer can assist you to draft a parenting agreement. This is simply a written statement of the agreement that you as parents have made. It is not necessary, however, for you to do this. There is no “usual procedure” as such. Please note, however, that a parenting agreement cannot be enforced in the Court in the same way that a Court order or commercial contract can. You can apply to the Court to make your parenting agreement into an order if you want. I suggest you call and speak to one of our family lawyers on 09 263 6953.
Is property always divided equally?
Q: My marriage has just ended. How easy is it in New Zealand to argue that the property should not be equally divided?
A: In most cases property is divided equally but there are exceptions. In the ‘Contracting Out’ in our Relationship Property Page (see Services) this lists our laws, and the term exceptional circumstances is just that. It is hard to overcome that in contrast to Australia, which has no such equal sharing presumption for relationship property. Please contact us on (09) 263-6953 or email jeremy@jeremysutton.co.nz for further assistance.
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