When a couple separate, one of the common issues they encounter is how to divide up their property. The general rule is that all “relationship property” is split equally between the parties if they have been in a qualifying relationship (i.e. a marriage, civil union, or de facto relationship for three years or more). Any “separate property” remains the property of the owner and is not shared.
There are some exceptions to these general rules. For instance, one party can claim an unequal share of relationship property in certain circumstances. The property sharing laws can apply to relationships of less than three years in certain circumstances.
What is Relationship Property and Separate Property?
Relationship property includes the family home (the couple’s main residence throughout their relationship if either or both of them own it) and the family chattels (i.e. furniture, household effects, pets, vehicles and boats) whenever acquired. This means that it does not matter if one partner owned the family home prior to the relationship or contributed more than the other to these assets. These assets are classified as relationship property regardless and therefore available for equal division.
Relationship property can also include:
- All jointly owned property;
- Property acquired in contemplation of the relationship;
- Superannuation and KiwiSaver (but only the proportion that was gained during the relationship period);
- Rental/investment properties;
- Business interests;
- In some circumstances, rights in respect of a Trust;
- Relationship debt (which does not necessarily have to be a debt in joint names).
Separate property is defined as anything that is not relationship property. Separate property remains the property of the owner and is not subject to equal division.
The Process for Dividing Property
The first step in achieving a division of property is to identify what is classified as relationship property and relationship debts. Then, it is important to provide disclosure to each other of all the assets and debts owned by each party. Part of that process is getting valuations of the assets and debts in order to determine the total value of the relationship property pool. It is an information-gathering exercise that enables both parties better to understand their entitlements under the relationship property laws and ensure each party is in the best position possible to reach an agreement regarding the division of relationship property.
To get a binding agreement in respect of the division of relationship property (sometimes known as a “separation and property division agreement”), the law requires the following:
- the agreement to be in writing, signed by both parties;- both parties’ signatures need to be witnessed by lawyers;
- those lawyers need to have provided their respective clients with independent legal advice about the agreement;
- the lawyers need to certify on the agreement that they have provided independent legal advice.
There is no ability to waive your right to independent legal advice, so it is essential to engage with a lawyer to help you through the process of reaching a binding agreement. The risk in not doing so is that a claim could be made against you in the future.
FOR MORE INFORMATION
It is essential you seek advice early when you separate, as there are time limits for applying to the Court to resolve relationship property matters if an agreement cannot be reached.
If you have any questions about these issues, please feel free to contact our Wellington and Rotorua based family law experts:
- Debbie Dunbar | 04 495 9940 | email@example.com
- Maretta Twentyman | 04 495 8918 | firstname.lastname@example.org
- Anna Chapman | 04 495 8905 | email@example.com
- Annabel Sanders | 04 495 8927 | firstname.lastname@example.org
- Olivia Lynch |07 349 7484 | email@example.com
- Claudia Leathart | 04 886 2665 | firstname.lastname@example.org
- Louise Curran | 04 495 8915 | email@example.com
- Jennah Terlesk | 07 808 1700 | firstname.lastname@example.org