As they say, knowledge is power, and so it is important for you to know how your property will be dealt with if your relationship ends. The purpose of this short article is to give you a brief overview of what the law provides, and the options you have available to you to ensure that you are protected as much as possible.
The relevant law and what it provides
In New Zealand, the Property (Relationships) Act (the Act) governs how couples are to divide their property in the event their relationship comes to an end, whether by separation or death.
The general rule is that once you have been in a relationship for three years or more, you and your former spouse or de-facto partner will share all assets classified under the Act as “relationship property”, equally.
Property and family law are often intertwined.
The relationship property to be divided will of course vary from couple to couple. However, this will generally include the home you live in together, family chattels including jointly used vehicles, the portion of any superannuation policy or KiwiSaver scheme attributable to your relationship, any income earned during your relationship and the funds in any joint bank accounts, along with any other assets acquired during your relationship.
Of course, there are various exceptions to this general rule, and you should talk to a lawyer about whether any of these apply to your situation. It is also important to be aware that different rules apply to relationships of less than three years.
Contracting out agreements
These agreements are entered into prior to, or during a relationship, and are more commonly known as “pre-nuptial agreements.”
You should enter into one of these agreements if you do not want the equal sharing provisions of the Act to apply, and instead, you wish to preserve certain property as your “separate property,” if your relationship comes to an end. In this way, you are “contracting out” of the Act, and setting your own rules as to how you wish to divide your property if your relationship ends.
Such agreements can ensure that various assets stay with you, from sizeable and lucrative investments, to smaller items of sentimental value.
Relationship property agreements
If your relationship ends and you have not entered into a contracting out agreement, it is then up to you and your former partner, at what is undoubtedly already a difficult time, to figure this out.
If you cannot agree on how to divide your property, you can make an application to the family court to determine this issue. However, if you are able to agree, this agreement can be recorded and formalised in a relationship property agreement.
Such an agreement may reflect what each party would be entitled to under the Act, or it may not.
If you do decide to divide your property in a completely different way to that prescribed by the Act, there is a risk that the agreement could be susceptible to challenge later, if giving effect to it would cause “serious injustice.” In order to avoid this, it is wise to give the reasons why the property has been divided in the way it has, in the agreement, so it is clear to anyone reading it at a later stage.
Requirements for such agreements to be valid
Neither a contracting out agreement, nor a relationship property agreement, will be valid unless it complies with the following requirements:
- The agreement must be in writing and signed by both parties
- Each party to the agreement must have independent legal advice before signing the agreement;
- The signature of each party to the agreement must be witnessed by a lawyer; and
- The lawyer who witnesses the signature of a party must certify that, before that party signed the agreement, the lawyer explained to that party the effect and implications of the agreement.
There are some circumstances in which an agreement that does not comply with these requirements may be given effect, however this is a matter of Court discretion and it is really not worth taking the risk.
The last requirement above – the lawyer’s certification of the agreement – is not simply a ‘rubber-stamping’ exercise. A lawyer’s obligations in signing one of these in agreements are extremely high – and for good reason.
In order to be able to adequately advise you in relation to any agreement, the lawyer must have full disclosure of all debts, and all assets that you or your partner own, or have an interest in. Without this information, it is not possible for a lawyer to tell you whether the terms of the agreement differ to your rights and entitlements under the Act and if so, what you are giving up (or stand to gain). It may be necessary for valuations of certain assets to be obtained to get to the bottom of this.
Once you have received this advice, it is then up to you to make an (informed) decision about what division of property is acceptable to you.
The Act provides that if you or your partner dies, the surviving partner may elect under the Act to either:
- Take a share of the deceased’s property in accordance with what is in the deceased partner’s Will; or
- Have his or her interest in the deceased’s property determined under the Act.
If you do have a Will, it is important that you do not let this document simply collect dust – you should review it regularly, particularly when a significant event takes place in your life, such as a marriage, the birth of a new child, or a separation. These events may prompt you to want to change how your property is to be divided on your death.
If you have a child, you may also wish to consider appointing someone as a testamentary guardian in your Will. A testamentary guardian is able to make decisions about significant matters affecting your child. If the other parent is also a guardian of your child and is still alive, this role would need to be shared between them and the testamentary guardian
It is important to be aware that such an appointment does not necessarily mean that the testamentary guardian will have the role of providing the day to day care of the child.
If you would like to know more, contact experienced family and property lawyers today.