In New Zealand, if a relationship has lasted at least three years, the Property (Relationships) Act 1976 applies (“the Act”). The division of relationship property is generally 50/50, regardless of what has occurred. Here we explain more about relationship property and how it’s divided.
When does the Property Relationships Act apply?
If you are married, in a civil union partnership or in a de facto relationship (including same-sex couples), and have been in the relationship for three years or more, when your relationship ends by separation or because one of you dies, you will be affected by the Property (Relationships) Act.
What is ‘relationship property?’
Relationship property includes things like:
Family home and property (including cars, furniture etc)
Family businesses and investments
Property owned jointly or in equal shares by the partners
Property acquired during the relationship (e.g. rental property, holiday house etc)
Superannuation and insurance policies (e.g. KiwiSaver)
Cash (e.g. Savings accounts)
Increases in the value of any relationship property, any income earned from assets or the sale proceeds from selling assets
How is relationship property divided?
Under New Zealand law, the general rule is that relationship property is divided equally (50/50) between you, regardless of the reasons why you are separating. For parties to have a binding relationship property and separation agreement that is enforceable in court, solicitors for each party are required to certify the agreement to say they have provided independent legal advice to their client on the terms of the agreement, and that their client understands those terms.
Do we have to divide things equally or can we do what we want?
You have the option to divide your relationship property how you wish, provided that full disclosure of relationship property assets and debt have been provided and you have received independent legal advice from your solicitor. This is especially important when there is a family home that either needs to be sold, or one person is retaining it on settlement. When you are both in agreement as to how the division of relationship property will happen, a separation agreement is drafted setting out the agreed terms and signed by both parties and their solicitors. It is at this point settlement of your relationship property is completed.
But my partner cheated, so I should get more than 50%
The end of a relationship can be a difficult time where emotions may be running high. Although you may feel entitled to more than 50%, as a starting point, under New Zealand law, relationship property is divided 50/50. A “no-fault” position is taken during the process of dividing relationship property. The reasons why the relationship has come to an end are not a relevant factor when dividing relationship property.
Is debt included in relationship property?
A starting position is that any debts incurred during the relationship are relationship property debts, regardless who’s name the debt is in and whether you knew about it. The responsibility for relationship property debts is shared but personal debts remain the responsibility of the person who incurred them. Relationship property debts are things like debts incurred jointly (such as bank loan to purchase a house), credit card debt, personal loans, hire purchases etc.
What paperwork do we need to provide to work out our relationship property?
Information on your relationship property assets and debt is called disclosure. Disclosure is gathered by each party to determine the relationship property pool to be distributed. Disclosure includes bank account statements showing bank balances of all joint and separate bank accounts held at the date of separation, statements showing balances of debt owing, KiwiSaver balance, evidence of values of vehicles, and other assets. It also includes any other information that is relevant to your relationship property matter.
Engage a relationship property lawyer as soon as possible.
Understanding your legal position early in the process is vital. Assets will not necessarily be divided how you expect, and valuable time can be saved if you understand from the outset what the correct legal position is. This then enables negotiations to take place from an informed position and helps to bring matters to an end as cost effectively as possible.
Author
This article is by Rachel Cooper - rachel@gallie.co.nz
See Rachel's profile here
