Property Matters

In New Zealand, dissolution of a marriage or civil union (divorce), division of a separating couple’s relationship property and care arrangements for the children of the relationship are three distinct issues, and have separate and distinct processes.

New Zealand has both marriage and civil unions, which are open to both same and opposite sex couples, and are in all legal respects treated the same. In addition, laws relating to the division of relationship property on a couple’s separation apply equally to same and opposite sex relationships, and both married and unmarried (de facto) relationships, except in limited circumstances. In relation to children, both birth parents are guardians of a child in almost all circumstances and have the same legal rights and responsibilities, regardless of the age or gender of the child (or parent) or the legal status of the parent’s relationship.

This article contains an overview of division of property in New Zealand.

Division of relationship property can occur at any time after the couple separates. In the case of married/civil union couples, it can occur either before or after the dissolution of the marriage or civil union, although in most cases it will occur before.

New Zealand relationship property laws apply to legally married couples, couples in a civil union and unmarried (de facto) couples, including those in a same sex relationship. What constitutes a de facto relationship is defined in the Property (Relationships) Act 1976.

The New Zealand Courts have jurisdiction to make orders over immovable property in New Zealand and movable property in New Zealand and elsewhere.

If the marriage, civil union or de facto relationship exceeds three years in length, it is presumed that all property defined as “relationship property” will be divided equally between the parties. This includes the family home and chattels (whenever acquired), any income earned during the relationship, any property obtained during the relationship, or any increase in value of property owned prior to the relationship by one party (separate property) when that increase is attributable to the relationship. Likewise, debts defined as “relationship debts” are presumed to be equally divisible.

There are exceptions to the equal sharing presumption, but these are fact specific and can be difficult to achieve. These exceptions include compensation for post separation economic disparity due to the relationship and exceptional circumstances that make equal sharing repugnant to justice.

Marriages and civil unions of less than three years, and de facto relationships of less than three years, are treated differently. For a marriage or civil union, the presumption of equal sharing applies, but is more easily displaced. For a de facto relationship, the relationship property legislation does not apply at all unless there is a child of the relationship (which is defined more broadly than a biological child of both parties) or that the parties have made substantial contributions to the relationship, and that failure to make an order would result in serious injustice.

Property matters can be resolved either by way of private agreement between the parties or by way of an application to the Family Court. Due to the time and cost involved in Court proceedings, most matters settle by way of private agreement. In order to be legally binding, these private agreements must meet certain criteria, including that each party has received independent legal advice as to the effects and implications of the agreement, and that the lawyer has certified that they have provided advice about the effects and implications of the agreement, and that their signature has been witnessed by a lawyer.