How do I claim my property back after splitting up with my partner? We were together for less than three years.
How will my property get split when I separate from my partner?
What is relationship property?
What is separate property?
Do we have to go to Court to split our property?
What if my partner and I don’t want our property to be divided according to the Property (Relationships) Act?
Do we need a lawyer to draw up a prenuptial agreement?
Does the Property (Relationships) Act apply if one of us dies?
Before I got married I had my own business. My husband helped me and did not get paid for it. Now that we are divorcing, he wants a share of my business even though he never put any money into it. What are his chances of getting a share of my business?
How do I claim my property back after splitting up with my de facto partner? We were together for less than three years.
Couples who have lived together for less than three years are not usually covered by the Property (Relationships) Act at all. If this Act doesn’t apply, then you and your partner’s rights to a particular piece of property depend on the ordinary rules of ownership – this means that the person with legal title to the piece of property owns it. You may be entitled to a share of particular items if both of you agree, and you bought the property together.
The Act can apply in some short-term cases where a relationship that lasted less than three years is seen as a de facto relationship by the law – if you and your partner have a child together for example. In these special cases, what you will receive depends on the different contribution you made to the relationship.
How will my property get split when I separate from my de facto partner?
The best thing is to work this out when you enter the relationship by drawing up a pre-nuptial agreement. This can save a lot of trouble if you should split up. The agreement clearly states how property will be divided if the relationship ends. A lot of couples may find this difficult to talk about, especially at the beginning of a relationship when the idea of splitting up seems unlikely and is hard to contemplate.
If there is no pre-nuptial agreement, and you and your de facto partner split up, it is handled in the same way as when a marriage or civil union splits up in terms of relationship property. Usually relationship property is shared equally between the partners. Relationship property includes:
- The family home, car, household furniture and appliances, even if you owned the house before you were together
- All property acquired by either or both of you while you were together
Sometimes, equal division of the relationship property can seem extremely unfair to you or your former partner. One partner may have earned a very high salary compared to the other. You should try and reach an agreement on how to split the property. If you can’t agree, you can take the case to court.
Relationship property cases are usually handled in Family Court. The Court offers six free counselling sessions to anyone having relationship difficulties. It is really worth trying to sort out your differences before taking the case to court, because property cases can be emotionally hurtful and time consuming, and there’s no guarantee you will get what you want.
What is relationship property?
Relationship property includes:
- The family home
- Family property such as household furniture or the family car
- Any property acquired by one partner or the other before marriage/union intended for the common use or benefit of both spouses or partners
- Joint debts
- Insurance on the spouses’/partners’ lives or on the family property
- Gifts or inheritances which the owning partner allows to become mixed with other relationship property, for example inheritance money is used to buy a computer for household use
- Property owned jointly or in equal shares by the spouses or partners
- Property acquired by either spouse or partner during the relationship except for gifts and inheritances
- Property such as salary or wages earned during the relationship
- Property which both spouses or partners agree is relationship property
- Increases in the value of relationship property, income from it, or money from the sale of it
All or some of a spouse or partner’s separate property may become relationship property if:
- That spouse or partner puts the separate property into relationship property, for instance putting an inheritance into a joint bank account
- The other spouse or partner’s actions have helped to increase the value or income from the separate property
- Relationship property has been used to bring about growth in, or income from separate property, for instance when relationship money is used to refurbish a rental flat inherited by one of the partners
- The separate property was obtained while the partners were living apart and the Court thinks it’s fair to treat it as relationship property
If you don’t want your property to be divided equally if your relationship ends, you can make a written agreement with your partner – at the beginning of the relationship, or at any time in the course of your relationship - as to how it will be apportioned. By law, each partner must have independent legal advice.
What is separate property?
Separate property is all property that is not relationship property, and stays with the person who owns it. Any gifts or inheritances you received while together are separate property, unless you mixed them with relationship property e.g. you used your inheritance from your father to pay off the mortgage on the family house.
Separate property will remain so if it is kept separate from the relationship during the marriage, civil union, or de facto relationship. Usually, separate property is not shared in the event of a break-up. If you want to protect this property, you should make an alternative arrangement with your spouse or partner.
Separate property includes:
- All property that is acquired using only separate property
- Proceeds from the sale of any separate property
- Any increase in the value of separate property, unless it is caused by the actions of the other spouse or partner or by the use of relationship property
- Family heirlooms or taonga
- Gifts and inherited property which a spouse or partner receives during a relationship, unless they’re mixed with relationship property
Do we have to go to Court to split our property?
Not necessarily. You should only apply to the Family Court as a last resort if you and your partner cannot agree on how to divide your property.
If you want more information about the Property Act, look on the Family Court website.
What if my partner and I don’t want our property to be divided according to the Property (Relationships) Act?
You and your partner can make your own agreement about how to split the property, how you will manage it during your relationship, and how you will divide it if your relationship breaks up. These agreements can be made at any time in your relationship. There is advice on how to enter into a property agreement on the website howtolaw.co.nz.
When a property agreement is made, the following rules must be followed or it could be considered invalid:
- The agreement has to be in writing and be signed by both parties
- Each party must have independent legal advice before signing the agreement
- The signature of each partner has to be witnessed by a lawyer, who has to certify that he or she has explained to the party the effect and implications of the agreement.
Do we need a lawyer to draw up a prenuptial agreement?
A ‘prenuptial agreement’ is a property agreement made by a couple before marriage. To make it a valid legal document, a lawyer must be involved and certify that both partners know the full implications of the agreement.
Does the Property (Relationships) Act apply if one of us dies?
If you or your spouse (or civil union or de facto partner) dies, the surviving spouse or partner may choose between having the relationship property divided according to the Act, or taking what they are entitled to according to the deceased's will (or, if there is no will, what they are entitled to as a spouse or partner). They would need to have legal advice before doing so, and the choice must be recorded and certified by the lawyer. See our information on wills.
Before I got married I had my own business. My husband helped me and did not get paid for it. Now that we are divorcing, he wants a share of my business even though he never put any money into it. What are his chances of getting a share of my business?
As a general rule under the Property (Relationships) Act, you and your partner are each entitled to half of all the relationship property. You can argue that because you owned the business before you were married, it should be classified as separate property. Because separate property is protected under the Act, your husband would not be entitled to half of the business.
On the other hand, he can argue that because he has helped you out, he has increased the value of the business and so is entitled to half of the increase in value of the business.
Free counselling is available through the Family Court, and might help you and your partner come to an agreement. You can apply for these sessions using their online form, through the nearest Family Court, or through your lawyer. Ideally, you and your partner will be able to reach an amicable agreement and avoid a court case which could be upsetting for both of you and any children you may have.
However, if you are still unable to reach an agreement after counselling, you can take the case to the Family Court to decide who gets what property. Legal aid is available for all Family Court matters other than divorce.
For more advice, you can contact: