Q: My ex-spouse had numerous affairs and spent our joint money on those relationships. Can I receive more than 50% of our property?
It is entirely understandable why you may want to ask for an unequal division. Unfortunately, you would not have sufficient grounds. New Zealand has a no-fault system,meaning that usually, it does not matter that one party to the marriage or relationship has behaved poorly.
The first thing to consider is what is relationship property and what is not. To do this you need to need to gather information about excessive spending or criminal behaviour. There may be situations where you have separate property such as an inheritance which has been kept separate. This can also include separate debts, for example, if they took on debts without your knowledge, that could be considered their separate property. This is not considered part of the relationship property pool.
Once you have determined what is relationship property, the law states that property will be divided equally upon separation. There are very few situations where the Court will order an unequal division. If there are "extraordinary circumstances" which are "repugnant to justice" then an unequal division may be ordered.
Misconduct during a relationship such as infidelity, excessive spending or criminal behaviour are not "extraordinary" and on its own, will not be sufficient for a finding of unequal sharing.
In other circumstances (for example a very brief relationship or a big disparity in contributions) the court considers justify an unequal division, and then the misconduct may be taken into account.
In summary, you are unlikely to receive more than a 50% share of the property pool. The longer the relationship, the less likely it is to be able to argue an unequal division. If you don't have children, are in your second or third relationship that is later in life, it is easier to argue unequal division. However, you should give more details to your lawyer to confirm your situation.
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Q: I urgently need to sell the family home to free up capital and move on with my life, but my ex-spouse is dragging the chain. What can I do?
The good news is, you have options to get things moving and your ex cannot "drag the chain" indefinitely.
You might want to sell the family home for a number of reasons. There may have a cashflow issue and you may be unable to pay the mortgage, or be wanting to take advantage of a buoyant market. Sometimes, the parties cannot agree on a value at which one will buy the other person's share, and it needs to be sold. There are also a number of reasons that a person might resist sale of the family home, such as the needs of children, or their ability to re-house themselves.
First, we suggest that you explore all opportunities to resolve this. You could do this between the two of you or with the help of lawyers and/or a third-party mediator. Sometimes you can reach a compromise, such as agreeing to list the property for sale in a few months' time, or agreeing to divide some cash elsewhere from your joint property.
If a negotiation approach is unsuccessful, you can apply to the Family Court for an order to sell the house. Your lawyer will be able to help you with all the details involved in the applications. It may take 9 – 12 months to determine an application for sale through the Court from the date of filing.
Once the applications are filed with the Court, your ex-spouse will be given the opportunity to respond with their own evidence.
If the home is owned by a family trust, it becomes more complicated. The trustees of the trust need to agree to a sale. If agreement can't be reached, then you can still make an application for sale to the Court, but it would be to the High Court and not the Family Court. This can be an expensive and time-consuming process.
In considering whether to make an order to sell the family home, the Court will look at the specific circumstances of your family. For instance, the Judge will want to understand the interests of any children who may be living in the home, whether there are any ongoing spousal maintenance issues and how far along are your negotiations on the division of all your assets.
Your lawyer will be in a position to advise you on your specific circumstances and what the prospects of success.
• Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.
