“Of course you can! But…” … if you are thinking about dividing your assets yourself after separation, read this!
The end of a relationship is one of the most stressful experiences you will ever have. But if you have an amicable relationship with your ex, can you do your own relationship property division?
“Of course you can!”
says Stuart Henderson, family law veteran of 50+ years and director at Henderson Reeves Lawyers
Starting down the path of negotiating a division of assets can create more conflict and cost in the long run if you don’t start by finding out what is fair in the eyes of the law i.e. how the law would divide your assets. An agreement that doesn’t meet the formalities of the Property (Relationships) Act may be unpicked later on when one person goes to a lawyer and says: Can you get me out of this?
Stuart says the best protection for an agreement that you do yourself is for it to be fair – and what is fair is in the eyes of the law – which is not necessarily what you might think.
So yes, he says, negotiate directly with your ex – it’s the respectful thing to do – but first get the best advice you can from an experienced family lawyer on what a “just division” looks like and the best way to negotiate your way to it.
Do I need a formal agreement?
The law doesn’t require you to have your agreement documented or signed off by a lawyer. You can divide your assets informally, but the agreement won’t be enforceable under the Act unless it meets the formalities of section 21F. The formalities require it to be in writing, signed by both parties, and certified by a lawyer for each party after both parties have had independent legal advice and understand its effects and implications.
You don’t have to have a formal agreement, but your bank might require you to e.g. if you need a mortgage to buy your partner out of the house, or to purchase a new home. An enforceable agreement reassures the bank that your ex has no further claims against your assets.
Do I need some help?
It isn’t always possible to reach agreement on your own – whether because you are both stressed, one person is trying to push through a quick settlement, or because you need to focus on more immediate priorities.
It is worth considering whether you are in the right frame of mind to be resolving a final division of property, or whether the process should be slowed down. When your immediate priority is how your ex is going to react at handover, or how to pay the rent now you don’t share incomes, your primary need is for the conflict to stop, for everyone’s sake. And that is rarely consistent with being able to advocate for a fair outcome for yourself on property and money issues.
A property division does not always have to happen immediately – if immediate issues like living arrangements and short term finances can be resolved by agreement, it might be better to allow time to get your head straight or to discuss how you were both affected by the separation.
If the pressure of direct communications is too much, or is creating conflict at child-handover, ask for emails to go via your lawyer so there is an intermediary for non-urgent things like the property division.
How does the law divide property after separation?
New Zealand has pretty good laws dealing with property and finances after a separation. It helps to be able to point to an objective standard as to what is fair – and in this case “fair” is the way the Family Courts apply the Property (Relationships) Act 1976 and the Family Proceedings Act 1980. These are laws formulated and tweaked over decades by law makers who see and respond to the issues before the courts every day. The law dealing with relationship property is underpinned by principles set out in sections 1M and 1N which enshrine the underlying ethos of the Act: that all contributions to a relationship are considered equal and that a just division has regard to the economic advantages or disadvantages to the parties arising from the relationship (or its ending). Fair is what the Family Court would say is fair – and family lawyers can tell you what that is.
Your ex’s lawyer also knows the law, and will be telling your ex the same thing your lawyer does. Some people say: “I hope my ex gets a terrible lawyer!”.
“No!” says Stuart: he says you want your ex to go to the best lawyer they can find: “Because a good lawyer will be telling them the same things we are telling you.” It may not feel like everyone’s advice is aligned when you speak to your ex however! Be aware of where your advice is coming from – your ex may not like the advice they have been given. Your ex may be counting on you eventually agreeing with them about what is fair, because they know the buttons to press to influence your decisions.
Dealing with the pressure!
Stuart’s observation is that pressure from an ex-partner shows up in the following ways:
- There is personal belligerence: one person pressuring the other…whether that is benign, or heavy: the guilt trip, “This is what my parents want…what your parents want”, “look at all I have done for you…”). Personal pressure may also include actual or threatened violence. You have a right to protection from the sort of behaviour which comes within the definition of family violence – apply for a protection order.
- Financial pressure: perhaps freezing the accounts, withdrawing money from joint accounts, taking the money away and saying “there’s no money, and you’re not going to get any anyway…”. You may need to apply for spousal maintenance if finances are used as a means of pressure.
- Pressure through the children: for example the parent who only saw them in the weekend suddenly becoming parent of the year, wanting them 50:50, talking to the kids about it, threatening to take the children, accusing you of being a terrible parent;
- Legal threats: saying you have no right to a share of property e.g. “You came with nothing, you leave with nothing.” This may include threats to evict you from the family home “…because I paid for it and you only looked after the kids…”. The remedy for threats around the house, especially if it should be preserved as the children’s home, is to apply for occupation of the home until the property is divided;
- “You’re mad”: telling you (or your friends and family) that you are losing it. That can include gaslighting, and is intended to throw you off balance and to distract you from the issues really needing to get resolved.
Most people need to get personal counselling to cope with such a demoralising situation. Going to see a lawyer is another way to get through. Legal advice can dispel myths about what a Court might do or not do, or to stop unacceptable behaviour.
Once you have been to a lawyer, getting them to give you a written assessment that you can discuss with your ex can be a great tool for your negotiation.
What other help is available?
If you aren’t making progress doing it yourselves, go back to your lawyer for advice. There are other third party interventions that can help too:
- Family Dispute Resolution is a subsidised mediation service put in place by the Ministry for Justice to help people resolve separation related issues such as decisions relating to children, money and property.
- You may find doing the Parenting Through Separation course useful to give you strategies for dealing with issues without unduly affecting the children.
- Mediation may be a good way to achieve a resolution, particularly where the issues are complicated, or there are a number of matters to resolve.
If your partner will not engage with you, or you are in dire straits financially as a result of the separation, you may need to apply to the Family Court for spousal maintenance, the right to remain in the family home, or to decide how assets should be divided.
There is more information available at justice.govt.nz under Separation and Divorce.
Taina and Stuart Henderson are directors at Henderson Reeves. Taina is a relationship property and spousal maintenance lawyer and co-presents the Divorce Café podcast with friend and fellow director Shelley Funnell. You can contact the Divorce Café team on firstname.lastname@example.org and you can speak to any of our lawyers by calling 09 430 4350.
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