Q. My husband and I separated a few months ago after I found out he was having an affair. He has denied this, even after I showed him that I could see his whereabouts on google location sharing. We were hoping to settle our relationship property ourselves to save on legal expenses, but he is not being honest. He said that the only asset we have is our home (which we haven’t sold yet), but I am sure he has purchased shares for us a few times – I just never paid much attention. I have seen on a friend’s Facebook feed that since we separated, he has been on an overseas holiday and gone halves in a boat! When I asked him where he got the money to do this, he denied the spending and the posts were taken down. Can google location sharing and Facebook be used as proof and where do I go from here?
A. Under the Property (Relationships) Act, once a couple has been married or live as a couple for three years, then generally speaking, their assets and debts become “relationship property” and are divided equally between them if they separate. If your husband purchased the shares during the time you’ve been together, then these are also relationship property and you are entitled to a 50 percent share.
In a separation negotiation, you are both legally obligated to disclose all your assets to each other. If your husband has been depleting these assets after your separation, for example, if he sold your jointly owned shares to go on holiday, you have the right to be compensated. If he couldn’t pay out your share, you could take a greater share of the proceeds from the sale of your home.
You say that you were hoping to settle your relationship property yourselves. Many couples choose this option. However, it relies on a degree of trust between both parties and it seems from your letter that you have lost trust in your husband.
I would advise you to discuss your situation in more detail with a lawyer who can advise you of your options. In the meantime, gather all the information you can on your relationship property. Look at bank records and emails to see if you can find out more about the share purchases and any other transactions that might be relevant.
The Facebook posts can be used as evidence. Social media such as Facebook, Twitter and Instagram are routinely used as evidence of wealth and spending in a separation dispute.
A lawyer can prepare a relationship property agreement which details how your assets will be divided. For it to be legally binding, you will both need to have received independent legal advice and sign the document witnessed by your lawyers.
This agreement is likely to contain a clause stating that you each acknowledge that you have made accurate and complete disclosure to the other. It is also likely to say that in the absence of full disclosure, the agreement will be void and the other party will be entitled to file property proceedings in the Court.
That means if it is discovered some time in the future that your husband did not disclose the shares, the two of you would need to go through some of the settlement process again – you would need to renegotiate and have a new relationship property agreement drawn up, incurring further legal costs. This is usually enough of an incentive to ensure people make honest disclosures about their assets.
If you are unable to reach an agreement and an application in the Family Court is needed, you can ask the Court to order that your husband provides disclosure of all assets that could be considered relationship property. This is a process called discovery.
Your husband’s affair
In some jurisdictions, to apply for a divorce, you need to have grounds for divorce. That is, a specific reason, usually backed up with evidence.
This is not the case in New Zealand, where we have a no-fault divorce system. This means one or both parties can seek a dissolution without having to show wrongdoing by the other party. The only requirement is that you have been separated for two years.
Misconduct such as an affair would also be irrelevant in the division of your relationship property – you are still both entitled to a 50 percent share.
Even if one spouse or partner is primarily responsible for the couple’s financial affairs, I recommend the other still be aware of what assets and debts they have and where the financial information is kept. This is helpful in a separation and if someone becomes ill or passes away.
Couples are legally obligated to be upfront about their assets in a separation. If they aren’t, they risk having to revisit their separation agreement in the future, wasting time and money. If you take an honest approach in your separation, you will be able to settle things more quickly and move on with your new life.
This article was originally published in the NZ Herald.