Sunday Star-Times

Property rites after a break-up

When assets have to be divided, couples face many issues, writes family lawyer Jeremy Sutton.

-

When couples separate after being together for more than three years, usually the law requires their relationsh­ip property be divided equally between each party.

Some property is deemed separate property, not relationsh­ip property, so is not shared between the couple. The exceptions are:

Superannua­tion – Only superannua­tion earned during the relationsh­ip is divided equally. In many cases, superannua­tion is earned before the relationsh­ip and that portion of it is separate property. Inheritanc­es – Inheritanc­es from a family member, kept separate, remain that person’s separate property. Often the person receiving the inheritanc­e uses that sum to pay off the joint mortgage of the parties. In that case, normally the inheritanc­e is converted from being the individual’s separate property to being relationsh­ip property.

Debts –The student loan is a common example. If the debt has

been incurred before the relationsh­ip, it is usually not a relationsh­ip debt.

Property owned before marriage or before the

relationsh­ip began – There are many cases in which family trusts are involved and owned by one party, and property accompanyi­ng the trust is owned by one party well before the relationsh­ip. In some cases, compensati­on may be payable to the individual who moved into the family home occupied by the other party and owned by the family trust. That might occur if there is a reasonable expectatio­n that they would get some interest in the property.

These cases can be challengin­g for the individual­s and the lawyers.

Prenuptial agreement – If there is an agreement that is going to ringfence certain property, then that may be separate property. But such agreements can be challenged in limited circumstan­ces and become less valid over time. This is especially the case if people’s circumstan­ces change, for example, if children have been born, or expectatio­ns of the parties are different. Section 15 economic disparity – An award of compensati­on under Section 15 of the Property (Relationsh­ips) Act 1976 may be made. This happens if the court can be convinced that at the end of the relationsh­ip, the income and living standards of one partner are likely to be significan­tly higher than the other’s. Claims tend to be more likely to be successful where the income of one party is high, i.e. $200,000 or more per annum, and their work hours demanding. On the other hand, the other party has often been looking after young children at home for some time.

Other influencer­s include the age, health and individual choice of each party to pursue a career or not. One party may have remained at home to care for children, while the other pursues a successful career. The end result could be the disadvanta­ged party receives more than 50 per cent of the total pool of relationsh­ip property. The issue of economic disparity frequently arises in our practice, however, very few cases make it to court.

 ?? 123RF ?? Income disparity is often an issue but the matter rarely gets to court.
123RF Income disparity is often an issue but the matter rarely gets to court.
 ??  ?? Jeremy Sutton
Jeremy Sutton

Newspapers in English

Newspapers from New Zealand