We have separated and the children and I have moved in with my parents as my husband said I have no claim to our family home, now worth around $2,000,000.
A: Because the main assets are owned by a trust the division of the trust property is complicated. You will need to seek advice from a lawyer to better understand and resolve these issues.
The main provisions of the Property (Relationships) Act 1976 will not apply to the property owned by the trust as these assets are not relationship property. For example, if your husband owned the family home in his personal name, you would be entitled to an equal share in the asset regardless of whether it was owned prior to the relationship. However, that is not the case where the family home is owned by a trust.
Q: My wife and I have been going to counselling as our relationship hasn’t been going well for some time. I don’t know if we are going to separate or not, but I am about to receive $275,000 from my mother’s estate and I want to be able to keep this if we were to separate. What can I do?
A: Under the Property (Relationships) Act 1976 the property you and your wife own is classified as either separate or relationship property. Generally, your relationship property will be divided 50:50 and you each get to keep 100% of your respective separate property.
The best thing you can do to protect your inheritance is to open a new bank account and have the inheritance paid into that account.
No other transfers should be made into the account to ensure there is no intermingling with any relationship property funds, and it is important to be aware that any money you transfer out of that account or spend could lose its separate property status.
Q: I am one of eight children. My mother died about five years ago and recently my father died.
I was horrified to learn that I was left out of the will. My father had also promised me I would get his Rolex watch, but this was not part of the will.
I have spent some time living in Australia in the past 10 years but I’m now back in New Zealand. Because of this I hadn’t seen much of my mother and the family.
We are not on speaking terms. I have contacted the executor of the estate, and they are refusing to give me the watch.
What are my options?
I would prefer not to go through the court system if possible.
I am a beneficiary, and I have no money to spend on lawyers. Do I need to see a lawyer or someone else to press for my entitlement?
A: There is testamentary freedom in New Zealand which allows for some autonomy of how an individual disposes of their assets, but it is open to possible claims under the Family Protection Act.
There may be a moral duty to other beneficiaries who are either left out of the will or provided for modestly.
Because you have been left out of the will, I understand that you have strong feelings to seek a claim. I would advise you to seek not only a claim for your share but also to recover your legal fees.
Q: My husband and I have gone through a nasty break-up. We have been separated now for two months and communication has been a problem. My ex won’t discuss anything with me and now he has gone as far as blocking my number and social media accounts so I cannot message him. There are things we need to discuss about our kids and our property, I do not even know what assets we own as he controlled our finances. How am I meant to move on when he is ghosting me?
A: Communication is a common issue between separating parties. In many cases communication becomes toxic and in others, such as yours, the issue is a lack of communication. This can be frustrating, particularly when children are involved.
When it comes to dividing your property, you do not necessarily have to discuss these matters directly with your ex. Whether you resolve a division of your property via agreement or through the court, you will need to instruct a lawyer at some stage. You cannot sign a valid relationship property agreement without receiving advice.
Q: After 15 years of marriage, my husband and I are separating. Throughout our relationship my husband has been financially irresponsible, and I have always had to take care of our expenses, contributing more (if not all) to the mortgage and bills. This has been particularly difficult over the last few years, and it has contributed to our separation.
I wouldn’t be so upset if he at least tried, but he has done more to deplete our assets than add to them. He spends lots of money on alcohol and luxury items like expensive watches. He has bought expensive cars on hire purchase that we can’t afford. I contribute my salary to KiwiSaver, he does not.
It doesn’t seem fair that he should get half of what I have worked hard to build. I am worried that he will just end up wasting anything he gets to keep.
A: New Zealand has a no-fault system. Generally, your property will be split 50:50 regardless of the reasons for your separation or the way spouses/partners have conducted themselves throughout their relationship.
There are limited exceptions.
Each party are entitled to their half share of the property even if they have had an affair, have gambled and wasted money, have addictions, have been abusive or have otherwise misbehaved. Section 13 of the Property (Relationships) Act 1976 sets out the exception to equal sharing. Section 15 of the Property (Relationships) Act 1976 sets out the orders the court may make to address economic disparities.
When can conduct be considered
The only express avenue for considering conduct is in s 18A of the Property (Relationships) Act 1976. Under that section, conduct can only be considered if it has been “gross and palpable” and has “significantly affected the extent or value of the relationship property”.
The section focuses on misconduct of a financial nature, such as the dissipation of property through gambling or fraud. These requirements present significant barriers to considering family violence.
This is a very high threshold, so there have only been a few cases where people have been successful in using that part of the law to get a greater than 50% share.
