Article: Speak Easy

If My Relationship  Ends, What  Happens To Our  Home?  with Michael BoturIf My Relationship Ends, What Happens To Our Home?  with Michael Botur

I feel like I’m going to get in trouble with my wife just for hypothesising about breaking up, but it’s useful for PropertyPlus readers to know: NZ has about 10,000 divorces a year. How many de facto unmarried couples break up? It’s hard to estimate. Because plenty of couples purchase property together when they’re not even married, what would happen if they were to split up? And is a prenuptial agreement even a real thing?

The piece of law in question is the Property (Relationships) Act 1976 (amended 2013). It doesn’t solely look after married people – those joined by a civil union or de facto relationship are covered. It doesn’t only cover how a relationship ending affects things- the death of a partner is addressed by the Act.

In the words of the NZ Community Law Manual, the general presumption of the Act is that a couple’s property will be divided equally between them. If your relationship lasts less than three years, though, or you come into the relationship with significant personal debts or assets, don’t expect that stuff to be split evenly. Short-term de facto relationships are not usually covered by the Act at all.

I’ve just gotten married and I’d rather like to get to the hotel and consummate this thing. Should I stop at a lawyer’s office on the way and write a pre-nup?

I guess so. Having things in writing helps the eventual outcome. Couples can absolutely create their own agreements about how to split up the home – but you need to get it in writing, it has to be legally sound, and each party needs legal advice.
Principles governing the splitting of property in NZ are:
• Men and women (or men and men, or women and women) have equal status, and
their equality should be maintained and enhanced.
• Non-financial contributions, such as taking care of the kids, are valued equally with
financial contributions.
• A just division of relationship property needs to take into account any economic
advantages or disadvantages to a spouse or partner as a result of the relationship
or as a result of the ending of the relationship.
• Relationship property issues should be resolved as inexpensively, simply and
quickly as is consistent with justice.

So, Mike, what property is liable to be split up, in this divorce fantasy which your wife would kill you if she found out about?

• Family home and chattels can be split up (including the family car, household
furniture and effects, and anything else owned by the family or used for family
purposes). These things are relationship property regardless of who paid for it or
• Family businesses and investments (any business used to produce family income
and any savings or investments made out of family income are treated as
relationship property)
• Property owned jointly or in equal shares by the spouses or partners
• Property acquired during the relationship
• Property acquired in contemplation of the relationship and intended for common
use or common benefit
• Income from selling the home. Even superannuation contributions can be split.

Then there is separate property, which remains the property of the spouse or partner who owns it. Examples include taonga, heirlooms, property acquired when not living with one’s partner, and stuff acquired from a third person by inheritance or trust benefit.

Can separate property become relationship property?

Absolutely, if it gets mixed with relationship property or used for family purposes. And don’t get me started on gifts. There is a lot of grey area in everything I’ve discussed here. If you are experiencing the dissolution of a relationship and need advice on what happens to the property, get in touch with your real estate agent. He or she is likely to be able to refer you to a great family law specialist.

Michael Botur has published journalism in NZ Herald, Herald on Sunday, Sunday Star-Times and Mana and he writes a lot of fiction. He moved to Whangarei in 2015 and was ecstatic to be able to afford a house here.

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