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Home / New Zealand

Christchurch High Court divorce case has parents fearing homelessness

Kurt Bayer
By Kurt Bayer
South Island Head of News·NZ Herald·
11 Dec, 2020 04:00 PM5 mins to read

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A Christchurch family say the High Court judgement is "unfair" and will leave them homeless. Photo / NZME

A Christchurch family say the High Court judgement is "unfair" and will leave them homeless. Photo / NZME

A messy break-up is costing devastated parents hundreds of thousands of dollars, forcing them to sell their family home, and leaving them with shattered dreams of a comfortable retirement.

The ugly split has played out in Christchurch courtrooms over the past seven years.

Now, with exclusive access to court documents and interviews with a stunned former husband and his parents, the Herald can tell the story for the first time.

None of the parties can be named for legal reasons.

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It begins in 2009 with two young, ambitious Chinese-born immigrants coming to New Zealand and meeting for the first time at a Christchurch church.

They fell quickly in love and married that year.

A child was soon on the way but within four years, their marriage broke up.

The wife called the police, alleging domestic violence. No charges were laid and the husband claims they were made up. His parents reckon their ex-daughter-in-law was after their money.

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And so, seven years later, after days of in-court wrangling, lawyer bills, the parties are still in dispute.

The ex-wife wants half of the mortgage-free marital home.

She took her former husband – and his mother – to court, making a claim under the Property (Relationships) Act 1976.

It went to a "heated" nine-day hearing before a High Court judge in Christchurch last year.

"The history of the dispute in this proceeding is a long, acrimonious and, no doubt, costly one for all the parties," Justice David Gendall wrote in his judgment.

"It involves heated and strong disagreements between not only [the ex-wife] and [the ex-husband] but also their respective families and, in particular, [the ex-husband's] mother. All this, in my view, is highly unfortunate."

The man's mother – aged in her 60s – says she was the sole owner of the property.

She maintains that she bought the property in 2008 after her son moved from China to New Zealand as a teenager to study.

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The mother says her son only had "usage rights" and claims they had even signed an agreement pre-marriage that it still belonged to her. She says he only held the property "as a mere trustee".

However, the property's title has always been registered in the son's name.

The ex-wife though took them to court – first through the Family Court to argue custody of their young child.

It then went to the High Court to argue the "division of their potential relationship property".

"Overlaying the claims and counter claims here are what are said to be strongly ingrained Chinese cultural values and customs," Justice Gendall noted in his judgment, seen by the Herald.

An expert witness at last year's High Court trial told the judge: "It is a fundamental virtue of Chinese culture that parents support their children financially until they become comfortably financially independent, and in exchange for their financial support, there is an obligation on adult children to care for their parents when they are older, and repay the financial support provided to them when they were young."

The expert added: "Chinese parents expect that any funds advanced to their children to buy property and chattels will be repaid when children become financially independent, and that in the meantime, their interest in the property is recognised."

Justice Gendall concluded that the ex-wife is entitled under the Property (Relationships) Act to a one-half share of the house which, based on the current rateable value of $960,000 less than "relationship debt" of $522,800 amounts to a one-half share value of $218,600. She is also due a one-half share of a Range Rover valued at $15,000, half of a $30,000 Bernstein piano, and half the $12,500 of the property's chattels.

The family is devastated with the ruling, which they describe as "unfair".

They say that once the ex-wife is paid, the son will be left $48,000 in debt and his mother left with just $382,000 – and no house.

"I am really suffering, very upset," she says.

"It is a very unfair judgment. I cannot accept it. How can my property become another person's?

"It feels like she has used the law to rob us.

"I feel that my life has no hope. I feel I can't survive – I can't live anymore."

Her husband added: "Our plan is to have a good retirement life in New Zealand but it has become a disaster."

And the son doesn't know what he can do. It's too late to file an appeal. And he fears they will all become homeless.

"I don't know any way to fight back," he says.

Divorce law expert Jeremy Sutton said if a property is used as the family home, it becomes part of the relationship property pool, "regardless of your subjective intention".

Other options that could have had a better outcome for the mother, Sutton says, were a prenuptial agreement; transferring it to a trust; documenting it as a loan, not a gift; or proving that there were "exceptional extraordinary circumstances that make equal sharing repugnant to justice".

The Law Commission reviewed the relationship property regime in New Zealand last year, and many suggestions for reform were made.

It was proposed that if one party brought a property into the relationship that was then used as the family home, the other party would be entitled to a half interest in any increase in value that had occurred during the relationship, rather than a half interest in the whole property.

Sutton said the Government decided to park the Law Commission's recommendations and will review them again after it has reviewed the laws relating to succession.

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