October 2022 - McCaw Lewis

A relationship breakdown can be an incredibly challenging time, emotionally, mentally, and financially. This is even more so when tensions are high. While the care and welfare of any children and personal safety, are paramount, when it comes to relationship property where do you start? What are the key considerations and practical matters you need to be aware of? How do you go about finalising your relationship property affairs?

Key Considerations

Everyone’s own relationship and situation is unique and with that comes many different considerations. However, there are a number of general questions to ask yourself and general matters to consider initially. The time between the relationship breakdown and finalising your relationship property affairs can be incredibly difficult. It is also not unusual to have power imbalances both financially and in having access to key information, due to the different roles that may be held in a relationship.

If you own your own home how will the mortgage, insurance, rates, and other pressing matters be paid initially?
Who will live where in the interim?
How are you going to support yourself and how is your former partner going to support themselves?
What are your options or obligations if either one of you is unable to support yourself?
Are there other financial obligations that must be met in the interim, such as hire purchases, credit cards etc?
If you are operating all your financial affairs from joint accounts, how are you going to ensure you each have what you need in the interim?

Do not hesitate to reach out at this early stage for support through your lawyer, accountant, or other financial advisors. Sometimes a third-party perspective/assistance can make all the difference in this trying time.

Practical Matters

Now is also the time to start thinking about some practical matters as you move forward in finalising your affairs.

Something that can easily be forgotten is passwords and access to email accounts, mobile phones, computers, social media, separate bank accounts, etc. It is not uncommon for couples to know each other’s passwords or for accounts such as email to be shared. It is particularly important to ensure that you have a private and secure email account to receive and send communications, especially when it comes to communicating with your lawyer.

Related to updating of passwords is ensuring you secure and obtain any records and previous communications. Common examples include joint email accounts, tax returns, bank statements, KiwiSaver statements and annual returns filed for a family business. Securing the records from the outset can result in significant time and cost savings.

What Next?

To address your relationship property matters requires one of two things, an order from the Court or a particular form of settlement agreement. We will always advocate for you to reach a negotiated outcome if it is fair but, unfortunately, this is not always possible.

While you do not need a lawyer to go to Court, though we would always recommend that you instruct one, a separate lawyer is required for each party to reach agreement through a settlement agreement.

The way we initially approach relationship property matters, to ensure that it is handled as cost effectively and efficiently as possible, is through the use of a secure online system, Settify.

Settify is a free online tool which you can find on our website, or we can provide you with a link. Settify enables you to cost effectively provide us with some background information regarding your relationship, the details of your assets and liabilities, contributions made to the relationship both initially and throughout, your future needs and your contact details.

Settify is safe, confidential, and secure. Best of all it enables you to fill it in at your own pace and in the environment of your choosing – you can also save as you go. By providing information through Settify you save on the time and cost of sitting down with a lawyer and working through all the matters that Settify covers. This can be particularly helpful if you have complicated financial structures and affairs.

Of course, Settify is not for everyone and if you prefer, we can instead meet with you in person, talk over the phone or by video call, to obtain the necessary information.

Once Settify is completed and you submit your information, Settify generates a confidential report for us. We then review this to understand your particular needs after which we get in contact to arrange a meeting at a time that suits you.

The experienced team at McCaw Lewis can help you navigate any aspect of your relationship property matters and answer any questions you may have.

Zane is an Associate in our Dispute Resolution Team, specialising in Relationship Property, and can be contacted on 07 958 7431.

You may contribute funds, maintenance or services to a property you don’t own. When the contributions are more than minimal, it can give rise to a claim against the property. What are some examples of a contribution?

Types of Contributions

Loan

If you contribute $100,000 to a property and document it as a loan you are contractually entitled to be repaid on the agreed terms. For instance, if you intend to loan $100,000 to your parents to help purchase a retirement flat, you should document the arrangement specifying that it is a loan, any conditions your parents’ have to comply with and the repayment process. A loan will not give an interest in a property unless there is a contractual agreement securing the loan by a mortgage.

Gift

In the above scenario, advancing an owner $100,000 as a gift does not entitle you to be paid back or to have an interest in the property. Simply saying to your parents “I will give you $100,000 for your retirement flat” and not documenting it leaves it as a bare gift, whereby when both parents have passed, you would not be able to claim against the retirement flat.

Constructive Trust

Contributing $100,000 with a clear expectation of gaining an ownership interest can give you a proportionate interest in a property, where an owner is taken to hold your interest in the property on constructive trust.

A constructive trust may apply when:

An undocumented contribution is made;
There is an intention that the contribution gives an interest;
The expectation is reasonable; and
It is reasonable for the owner to yield an interest.

Although a contribution is often easy to show, establishing that there was a reasonable expectation of an interest is more difficult.

Non-Monetary

Non-monetary contributions to a property can give rise to a constructive trust claim. Landscaping, ground maintainance, home improvements and housework are examples where a person has contributed to the preservation or enhancement of the value of the property giving rise to a potential claim.

It does not matter if the partner working in the home knew it was separately owned (such as by a family trust). Provided the partner carrying out the work had an expectation of gaining an interest which was reasonable, the Court can find the owner must yield an interest proportionate to the contribution. It is important to note that this must be considered relative to the benefit the contributing party received (e.g. not paying rent).

Family Home

Often kiwis have the family home owned by a family trust. A common misconception is this protects the family home from claims from third parties and non-beneficiaries of the family trust. However, the law is that if you have been in a relationship for three years, living in a property owned by your partner or a related entity (such as your partner’s family trust), you may have a claim for a share in the property under the relationship property regime.

Act Fast

Lodging a caveat over a property on the basis of a loan, constructive trust or the relationship property regime is a quick way to stop a sale or transfer. A caveat is inexpensive; however, the caveat document needs to carefully describe the underlying interest, there must be a valid basis for lodging the caveat, and must be against the current owner. If the ownership changes, a caveat cannot be lodged against the new owner.

If you have questions about contributions to a property, our Dispute Resolution Team are able to assist you.

If you would like further information, please contact Daniel Shore on 07 958 7477.

Month: October 2022

My Relationship Has Ended. What Now?

Do I have a claim against a property if I contributed financially to it?

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