Couples who live together and are not married live in what is called a de facto relationship.

Sometimes it is difficult to decide whether a qualifying de facto relationship exists. It can often be important to establish if there is a de facto relationship for the purpose of division of property, either on a relationship breakup or when one partner dies.

It is a matter of whether the couple have a mutual commitment to a shared life together.

The property division regime that applies to married couples similarly applies to couples in a qualifying de facto relationship of three years or more.

For a couple in a de facto relationship that has lasted less than three years, their property may still be divided on a contribution basis, if there is a child of the relationship or one partner has made a substantial contribution to the relationship.

The need for spousal maintenance often arises alongside division of property and arrangements for the children.

A classic situation is a wife and mother in need of financial support as a result of the breakup of a relationship. She may not be able to look after herself financially until she gets her property entitlement, or it may be longer if circumstances prevent her from being able to fend for herself.

An important part of spousal maintenance for practical purposes is the ability to get interim spousal maintenance to help fund the necessary legal and other professional fees needed for a division of property. These costs are allowable as a budget item for example in a claim by a woman who has to incur significant professional fees to unravel and conduct Court litigation to divide relationship property or property held in a Trust.

While spousal maintenance is often important, it is not always, and you need good legal advice about its necessity or otherwise.

When a husband and wife live apart this is their separation date which can be important for property division purposes. A couple could be separated even though they are still living in the family home.

Either spouse may apply to the Family Court to have the marriage dissolved two years after separation. You can get the forms for this from the Family Court Registry, and you do not need a lawyer.

A dissolution of your marriage changes your legal status to being single again and you are free to remarry. It can affect the entitlement of a spouse such as to a superannuation entitlement.

An important consideration is that a spouse needs to apply to the Court for a division of relationship property within a year of the dissolution.

For de facto or civil union partners, the time limit for applying to the Court for division of relationship property is three years after living apart. However the Court may grant

leave to apply later if there is a good reason for your delay.

When one partner dies, the survivor still has an entitlement to division of relationship property.

The surviving partner needs to either negotiate that entitlement with the Executors or Administrators of the deceased partner’s estate, or apply to the Family Court within 12 months of Probate of the deceased’s Will.

If there is a small estate able to be distributed without formal administration, the choice must be made within six months of the date of the partner’s death.

Before applying for division of property the surviving partner must first make a choice. The choice is between applying for the usual half division of all the relationship property, or instead accepting whatever the deceased partner left for the surviving partner.

The surviving partner always requires good legal advice as to the wisdom of making that choice.

Division of property

Your relationship property is usually divided on a 50:50 basis after a marriage or committed relationship that lasts three years or more. Couples in a relationship of less than 3 years can in some circumstances have their property divided on the basis of their contributions.

While that sounds simple enough, working out what it means in your case may not be straightforward.

The family home and family chattels are to be divided equally, and in practice it is usually the same equal division for other property.

Values

When it comes to entering into Agreement or having the Court order a division of property, it is usually the current value of property that is used. However some property, such as your bank account balances and superannuation entitlements, may have an earlier valuation date, usually the date the relationship ended with separation or living apart. The rationale is because at the living apart date the partners or spouses ceased to be in partnership and have now gone their own way financially.

The half division of a Superannuation or Kiwisaver entitlement is of its relationship component, in other words what property was built up between the start of the relationship and when the parties ceased to live together.

Professional valuers may be needed when values cannot be agreed. This may be a Registered Valuer for real estate, an Actuary for superannuation, and increasingly Forensic Accountants to value interests in a business, company or Trust.

Economic disparity

Sometimes a relationship breakup means one partner’s income and living standards are likely to be significantly higher than the other because of what has happened during the relationship. One such scenario is a mother out of the workforce caring for children, while the father’s career has taken off and his earning potential has increased.

In these circumstances the Court can award a lump sum to be paid to the so disadvantaged partner out of the other party’s relationship property entitlement.

A recent Supreme Court decision has bolstered the entitlement of the disadvantaged party to this remedy. Sometimes expert accounting advice is necessary to calculate and quantify this likely entitlement.

Occupation Orders

On living apart one partner may need continued occupation of the family home as an interim measure. If agreement cannot be reached, the Family Court can order an Occupation Order. This usually happens when there are children who need the continued security of a stable home environment.

In some circumstances the occupying parent may need to later reimburse the other owner for what is termed an occupation rental.

Agreements

For an Agreement about your relationship property to be binding there are some formalities. It must be in writing and the independent lawyers for each party must sign a certificate on it that says you have received advice and you know what you are doing.

Other Agreements, for example about the children’s care arrangements, spousal maintenance or child support do not need that certificate. Everything that is agreed can still be put in the one Agreement which has the lawyer’s certificate.

Both parents have a continuing obligation to financially support their children even though the parents and their children will no longer be living together as a family.

Parents can agree on how they will do this in the changed circumstances. But if agreement cannot be reached, either parent can apply to Inland Revenue Child Support for what is called a Formula Assessment of child support. This assessment works out how much one parent needs to pay the other having regard to their respective incomes, and the amount of nights the children are in their care.

Your likely Formula Assessment can be calculated by visiting the www.ird.govt.nzwebsite. The benefit of an annual Formula Assessment rather than an Agreement is its flexibility, as the needs of the children and the resources of their parents change over time.

A Formula Assessment may not work in your circumstances, perhaps because even though the paying parent has plenty of money, a low taxable income is used in the formula. There is an Administrative Review process to change a formula assessment in such situations.

In some situations a Family Court Judge can decide how much child support is appropriate.

Sadly woman and children are all too often subjected to physical or psychological abuse. The Police and the Family Court take domestic violence very seriously. The first port of call for a victim of domestic violence is Women’s Refuge www.womensrefuge.org.nz.

The first step in the Family Court process for a domestic violence victim is to urgently obtain a Temporary Protection Order, which the Police immediately serve on the perpetrator and start the process of trying to remedy the situation. Women’s Refuge are able to put victims in touch with a lawyer experienced in these cases.

Wills and estates

A person of sound mind can make a Will leaving their estate to whom they wish.

However if their Will means a breach of moral duty, perhaps owed to a dependent spouse or child, the Family Court can intervene to rectify the breach. Similarly if a Will fails to honour a testamentary promise the Court can rectify that.

There are formal requirements for a valid Will such as it being in writing and the testator’s signature witnessed by two persons. However if the formal requirements are not met but the testators’ intention is still clear, the High Court can validate an otherwise invalid Will.

You will need a good and experienced lawyer to advise and conduct the necessary litigation to validate an otherwise invalid Will.

Helpful information about making a Will and Estate Administration is available on the New Zealand Law Society website at www.nzls.org.nz.

Claims against estates

Surviving spouses, partners, children and even grandchildren have potential claims against the property of a deceased spouse, partner, parent or grandparent. The nature and extent of these entitlements varies in different situations.

You may have a claim if there has been a breach of moral duty the deceased owed you. The extent of your claim will depend on the seriousness of the breach, the size of the estate, the terms of any Will, and other deserving beneficiaries of the deceased’s estate.

In some circumstances a person dies without fulfilling a promise made to benefit someone in his or her Will. It is called a testamentary promise, and claims can be made against the estate under the Testamentary Promises Act. An example would be a claim by a caregiver who looked after the deceased for a number of years for little or no reward, where the deceased promised the caregiver would be rewarded in the deceased’s Will.

There are time limits for notifying Executors of estates of your intention to make a claim, and for bringing claims in the Family Court against estates being administered.

Good legal advice is always needed about time limits, entitlements and claims against estates.

When parents live apart it is usually best for children to continue their relationship with both their parents.

Issues that typically need to be resolved revolve around their day to day care, arrangements over the time they are going to spend in each parent’s care, their schooling and all the other aspects of parenting.

What is best for a particular child is always the determining factor in deciding what should happen.

Parents can agree on what is best for their children’s care arrangements. If there are problems, or agreement is not possible, the Family Court Judge will decide.

Unless in an emergency, there are matters that need to be attended to before being able to apply to the Family Court to ask a Judge to make a decision. It is necessary to attend the Parenting Through Separation course, and there needs to be an attempt to resolve matters at mediation by attending the Family Court’s Family Disputes Resolution process.

Your lawyer is not automatically allowed to represent you in Care of Children Act cases but can in some situations. If there are serious issues about your children’s welfare, the Judge will appoint a lawyer for the child, and in some difficult cases the Judge will appoint an expert such as a child psychologist. Parents can be required to contribute to the costs of these Court appointed persons.

The role of the family lawyer

When there is a relationship breakup issues inevitably arise around the care of children, division of property, child support and spousal maintenance.

These issues are best agreed, and if agreed can be recorded in written agreements with the assistance of your lawyer. When agreement cannot be reached a Judge in the Family Court can decide the issues that you and your partner cannot resolve.

When a spouse or partner dies issues often arise over division of property, and about the property in the deceased persons estate.

These are typical situations when you need a good and experienced family lawyer.

Practical tips

Professional legal advice and assistance can be expensive and so you should do what you can to ensure your lawyer can work with you efficiently.

There are things you can do to make the task simpler and easier for your lawyer and therefore less costly for you.

You want your lawyer carrying out legal work for you, rather than administrative work which you can often do yourself.

Provision of information to your lawyer in a coherent and helpful way means your lawyer can work efficiently for you.

An example is providing your lawyer with basic necessary information as is on the attached

If your situation is complicated, then providing your lawyer with well presented information sorted chronologically results in less administrative work for your lawyer, more timely advice for you, and less cost for professional services.

You need your lawyer to help you get to the stage when matters are resolved as well as they can be for you, and as soon as possible. There are sensible and practical things you can do to assist that process.

The earlier you can find out how it all works and what is likely to happen on your relationship breakup the better. You are likely to make better decisions with that information and knowledge.

So you should consult your lawyer at an early stage.

In some families property is held in a Trust. When a relationship breaks up the issue is then how the entitlements of the partners should be resolved in the changed circumstances.

It is increasingly common for the family home to be trust property, and sometimes business interests are ultimately owned by the trustees of a family Trust.

While property is held in the name of trustees, the trustees do not have ownership rights. They hold the property in trust for the beneficiaries of the Trust.

Discretionary beneficiaries of a Trust do not have any right to trust property, but the trustees must consider their circumstances and have a discretion to give them trust property. Final beneficiaries of a Trust are the persons who end up with the trust fund at the end of the Trust’s life if there is then any left.

The person who can hire and fire the trustees, often called the Appointor, is the person who controls the Trust. If that person does not have your interests at heart you are unlikely to continue to receive benefits from the Trust.

If there is a nuptial flavour to the accumulation of property into the Trust the Family Court has jurisdiction to restructure it so as to benefit both spouses and any children beneficiaries. This is on the basis that with the changed circumstances on a dissolution of marriage, the previous benefits a husband and wife may have had from the Trust may have ceased for one of them. This remedy is only available when there is a marriage. It does not apply to de facto relationships.

Despite this possible Court intervention, a division of trust property can always be agreed.

The Property (Relationships) Act 1976 applies to division of relationship property, unless the partners have agreed otherwise. Such an agreement has to be a valid written Agreement made pursuant to the Act.

These Agreements are Pre-nup Agreements, but they do not have to be made prior to a marriage, and indeed can be made by the partners of a de facto relationship or a Civil Union.

Since there is a general presumption of equal sharing after 3 years of a relationship, and sometimes one partner has considerably more property than the other at the start of the relationship, these Agreements are often entered into before the 3 years are up. But they can be entered into at any time.

Deciding what to provide for in one of these Agreements is often difficult. This is because you are providing for what might happen in the future if your relationship were to break down, or for when one partner dies.

These Agreements are especially useful in second relationships, when there might be children from prior relationships for whom each partner wants to make provision for in their respective Wills. An Agreement may restrict the division of property on death to the surviving partner so that the deceased’s partner still provides for his or her children from a previous relationship.

Deciding what should happen in the future over division of property is often difficult, especially for older couples with children from previous relationships. You will need guidance from a good and experienced family lawyer to help you decide what is best to do for your partner and your children, and to ensure that what you decide is carefully documented so problems do not arise in the future.

When you separate, your children should be your priority and it is important to organise parenting arrangements as soon as possible so there is stability and a continuation of the children's care and their relationships with their parents.

Parenting Agreements

Sorting out an agreement between you and your spouse/partner is usually the best option. It is quicker, less stressful and less confrontational that going to Court and children are likely to cope better when they know their parents/caregivers are working together.

You can reach an agreement orally or in writing but unless the agreement is submitted to the court to be made into a Parenting Order the agreement will not be legally binding.

Agreements in writing are the best option as they provide clarity and detail. The Parenting Plan form is particularly useful as it is something you can work through together with your spouse/partner and it refers to care arrangements for special dates/occasions such as school holidays and Christmas.

Once a written agreement has been completed you can file this in the Family Court to get a Parenting Order by Consent. The Court filing fee for this is $220.

Parenting Disputes

If you are unable to agree on care arrangements then there are two compulsory steps you have to complete before you can ask the Court to make a Parenting Order. These are:

1. Parenting Through Separation

Parenting Through Separation is a free parenting course which provides you practical advice and skills to help you understand and manage the needs of your child(ren) following separation.

2. Family Disputes Resolution

A Family Disputes Resolution is a form of mediation service that can help you and your spouse/partner to reach an agreement. The sessions are run by an impartial mediator who will help you identify the issues and facilitate discussion focused on what is best for the child(ren).

The mediator cannot force you to agree or make a decision for you, and you can bring a support person if everyone agrees.

You can search for Parenting Through Separation and Family Disputes Resolution providers on the Justice website.

Court Application

If after attending a Family Disputes Resolution you are still unable to agree then you will need to file an application in the Family Court for a Parenting Order.

Without Notice Applications

You can bypass the steps above and get matters before the Court quickly by filing a without notice application where there are safety concerns or a risk of undue hardship.

to begin making arrangements for the care of your children.

Clarity about separation can be important for a number of reasons including for the valuation of property and to obtain a dissolution of marriage.

To get a dissolution of your marriage you need to have lived apart for two years.

Neither a formal Separation Agreement or Order is necessary, but both can be useful tools in managing a complicated separation, particularly about the date from when you have agreed to live apart.

Separation Agreements

Having arrangements in writing can held later avoid misunderstandings about what you and your spouse/partner have agreed.

A Separation Agreement does not have to but can also provide for interim financial and care of children arrangements.

Separation Order

A Separation Order is a legal declaration that sets out the date of separation and can be useful where one party does not agree or refuses to acknowledge to the separation.

To obtain a Separation Order an application and evidence needs to be filed in the Family Court.

Contact us for assistance with pre-separation and separation agreements.