Many clients who are separating and wish to resolve relationship property issues ask “Do we have to have a lawyer?”
The simple answer is that an Agreement is more binding if a lawyer is involved.
If they are not involved, then, at first sight (prima facie) the Agreement is void.
But there is a clear exception in Section 21F of the Property (Relationships) Act 1976 below but the onus changes to the party asserting that an informal Agreement should be held to be valid.
The difficulty is that a well informed couple might want to do something quite simply.It may be a pre-nuptial Agreement or, simpler still, it may be that on separation the 50/50 sharing is manifestly obvious. .....The first part of this topic has been displayed free of charge. Join up for $45 to have access to this and all other topics!
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"dear Netlaw,
My partner and I found all your family sites really good. We are fighting a maintenance and custody dispute with his ex and we cannot get legal aid so we are trying to go it alone and your site really helps. The judge actually commented on our documents saying that they were good. Thanks again . . . . Tuia"
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Feedback/Blogs/Reviews from related topic: Guardianship - A Separate Topic
"Need some advise as to division of relationship property. Been married 4.5years. No children. Married in Florida and then he moved us to NZ. We then bought two properties which I have always maintained household wise and financially since I always earned a far more significant amount of money he did. Do I have to split 50/50 or is it possible to make a case for more to my favour? Thanks Paulette
Netlaw replies - We assume the properties are in NZ. If they are situated overseas then our Courts cannot determine on them.
Assuming that they are here in NZ then the Property (Relationships) Act 1976 applies. After three years of marriage they are divided equally.
However, there is a possible claim, although it is not easy. Section 13 of the Act establishes the 50/50 split . . . but then says that if "there are extraordinary circumstances that would render equal sharing repugnant to justice" then the Court can, in its discretion, go outside equal sharing. But it is difficult to establish. A disparity of financial contribution is not enough. It must really be a combination of factors within the marriage. But it is worth further detailed analysis.
Also, section 14 applies to marriages of short duration, ie - under three years although the Court can declare a longer marriage to be one of short duration in certain circumstances. All cases are different but if he had an affair or string of affairs or lived apart for significant periods of time then you just might get the marriage declared to be one of short duration. The split can then be less than 50/50 "where the contribution of 1 spouse to the marriage has clearly been disproportionately greater than the contribution of the other spouse".
Hope this helps . . . . Netlaw
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"Netlaw, a little advice needed thanks. I was employed overseas for thirty odd years before returning to NZ. About twenty years ago I started contributing to a super scheme. I re-married some 6 years ago, so 14 years before new wife. I ended up being given a pension due to medical grounds, hurt on duty. Now that I receive a pension every fortnight, how is this factored into relationship property?
Netlaw replies: Specific advice is required but the super policy IS relationship property, including the amount saved before the marriage. A specialised accountant called an actuary values the policy based on a "looking into the future" approach which also discounts for variables."
Feedback/Blogs/Reviews from related topic: Guardianship - A Separate Topic
"At last . . . . I managed to find law on this point on your topic. This topic as well as the other family law sites were useful to my case which involves my partner shifting to ... (edited out) and leaving me with no access. I have been treated unfairly but Netlaw gives me some hope. Gerald"
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"Can the Family Protection Act help 2 kids 11 and 13 to some provision from their fathers estate when there is no will. They live with their mother (divorced from late father) and now his defacto (no children involved) is claiming everything and not willing to make any provision for these children. House and furniture gone to her as purchsed jointly but there is still balance of insurance, super ann. ute, boat and personal effects that could be dispersed to them. At present all they have is hte ACC weekly payment that replaces the child support thir father paid.
Is there anything fathers family can do to get something for his boys? Any thoughts or othe similar experiences??
Netlaw replies: YES. A claim can be made if there is no will. It sounds as if they have a very dtrong case. See a lawyer immediately.
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"Dear Netlaw,
Our father had a will which was invalidated by a 3-day form of marriage. The woman in question got divorced 1-month before and married our father when he was in a semi-coma and he died 3-days later. The supposed spouse is now applying to be Administrator under the Administration Act and after $121,000 + 1/3 share of remaining property. Could you please advise, do the children (there are 4 of us) have any remedies? Your expertise will be gratefully received and is very much appreciated, thank you.
Netlaw replies: Yes. Children can file a claim under the Family Protection Act 1955 asking the Family Court to provide "further provision" from the will. Our special topic "Family Protection Act 1955" covers the principles.
But in this case, you might also be able to challenge the validity of the new will on the basis of your father's medical condition and possibly on the basis that he signed under pressure."
"Hi
I have a mother who is 80 years old with dementia. We (6 children) don't think she has a will and no EPOA. She has no real assets except $8000 in the bank which is intended for her funeral. Are we likely to run into any problems or major costs if no will exists at her death. Is there anything we could do now to make life easier in the event of her death. I'm guessing if she doesn't have a will now, its probably too late.
Any help would be much appreciated.
Thanks
Netlaw replies - It is too late unfortunately. See a lawyer."
Feedback/Blogs/Reviews from related topic: Guardianship - A Separate Topic
"My husband and I liked all this information. Keep it up please! Well worth the $45. We have spent so much on lawyers, blast them. I suppose they are necessary but when we see these concepts set out simply by you in Netlaw we wonder what all the secrecy and fuss was about in other matters. "
"I have heard that through the Will I am able to gift up to $27 500.00 of my property per year to some one that I want to inherit without paying gifting fees where do I find a template for this
Netlaw answers: Good morning,
You posted a blog on Netlaw this morning. We reply as follows.
Gift duty is not payable on money or assets which pass under your will. Therefore, you can leave $1,000,000 to someone in your will and it is not classified as a gift.
However, if you wanted to give someone $1 million during your lifetime then that would attract gift duty at 40 cents in the dollar (subject to a more specific calculation about a lesser amount of gift duty in some bands above $27,000) for any amount gifted over $27,000 per year. This is why gift programmes over a number of years have to be set up during the course of your lifetime to avoid or minimise paying gift duty.
But we repeat - money or assets left under a will are not treated as gifts for gift duty purposes. Nor are death duties payable any more. They were abolished well over 10 years ago.
