Typically, relationship property disputes can be resolved outside of Court. As relationship property lawyers, we often help people achieve this.
Unfortunately, this is sometimes not the case, and litigation may be required.
At Focus Law, our team has successfully litigated a wide range of divorce, separation, and relationship property disputes up to New Zealand’s High Court. We have a wide range of experience achieving outcomes in Court for our clients when other options have failed.
Relationship Property Overview: Resolving Disputes in Court
The Property (Relationships) Act 1976 governs the general principles around how couples (married, de facto, civil union) can divide their assets in the event of separation. If it’s may the case that you and your ex-partner cannot agree on how to divide your assets and liabilities, your option may be to apply to the family court for an order dividing your relationship properties.
The “Equal Sharing” Principle
Generally speaking, you and your spouse/partner are each entitled to a half share of your family home, your family chattels, and any other relationship property.
This is usually referred to as the “equal sharing” rule. There are of course exceptions to this rule – such as if your marriage / de facto relationship was of a short duration, meaning it lasted less than three years.
However, it is worth noting that whether your marriage or de facto relationship was one of short duration is not as clear cut as you may think. Even if it exceeded the bench-mark of three years, it may still be considered to be of short duration. You are more than welcome to speak with us and we can help you assess whether you and your ex-partner qualify for the equal sharing rule.
Is Litigation Necessary?
For most relationships, the answer is no – mediation and negotiation can typically produce outcomes that you will find satisfactory.
But relationship property litigation is not as uncommon as you might think. Relationship property disputes are resolved, in first instance, at New Zealand’s Family Court. The Family Court is less formal than other New Zealand Courts, such as the High Court – and has a lower barrier to entry. As such, many who would never have previously considered litigation may decide to make their case there. We have helped many such individuals to do so.
Making a decision on the best path for your particular circumstances can be difficult – we can help you understand your options. However, it’s important not to leave things too late. If you are considering making an application to the Family Court, you should bear in mind the following timeframes:
- If you were married / in a civil union: You must apply to the Family Court within 1 year after your marriage is dissolved by a court order (please also note that this is different from the time when you separated or started living apart).
- If you were in a de facto relationship: You must apply to the Family Court within 3 years after you separated/started living apart.
The Relationship Property Litigation Proceedings Process
If you are considering applying to the Family Court, we can assist you with the following:
- Filing the application and your narrative affidavit. Your narrative affidavit is essentially your evidence presented to the court – this is where you can tell your side of the story and attach your supporting documents and evidence;
- Preparing and filing your affidavit of assets and liabilities. This is where you will declare all the assets you have and all debts you owe – your ex-partner will have to do the same and make a declaration truthfully.
After you have filed all the necessary documents along with your application, parties are required to attend Directions Conferences in the Family Court. At these conferences, parties are expected to narrow down the legal issues in dispute and sort out how the matter is to proceed. As experienced litigation lawyers, we are able to attend these conferences on your behalf to further proceed the matters.
The next step is called the discovery process. This is where you and the other party disclose and exchange all documents / information relevant to the issue(s) in dispute. Comprehensive discovery is vital as it provides the basis and cornerstone of any legal proceeding.
In the context of the division of relationship property, discovery serves to provide an accurate overview of the assets and liabilities position of both parties – from which we can ascertain how both parties should divide their relationship property.
As discovery is usually a rather lengthy and extensive process, we will be able to help you gather all relevant information to present to other side (and, of course, seek all relevant information from your ex-partner) .
It can get very tricky if your ex-partner is refusing to provide relevant documents and information – this can be a sign that he or she may be concealing certain assets from you. If negotiation breaks down, we will be able to apply to the Family Court on your behalf, for further discovery from your ex-partner.
After discovery is completed, parties will be required to attend pre-trial conferences. These conferences are designed to resolve all pre-trial administrative matters so that the court can determine whether the parties are ready to proceed to trial. These pre-trial matters may include whether there are outstanding discovery issues, the mode of giving evidence, whether interpreters may be required, etc. If all these matters can be resolved, then the matter may be sufficient ready to proceed to trial.
Every trial is different, but we will be there on the day to make your case. It is likely you will be called as a witness – we will ensure you understand the processes involved.
The above may sound overwhelming, or overly complicated, but that’s okay – it’s why we’re here. Relationship property issues can be difficult and confusing – we are experienced family lawyers who have dealt with many cases that are likely similar to yours.
Whether you are simply considering initiating proceedings, or just want to get your relationship property issues resolved, we are here and willing to help.