COMMENT
Andrea was having an affair. Her new man, Craig, was an old boyfriend whom she had caught up with at a school reunion. They had been seeing each other in a clandestine way for over two years.
Craig had left his de facto wife early on in the piece but Andrea
had not been quite so decisive about ending her de facto relationship of 10 years. She had just not made her mind up about things.
Then last month she woke up one morning full of resolve and gave kind, loyal but now seemingly boring Dennis the hard word: he had to move out.
Andrea was clear how things were going to be. She would give him time to take in the news, then sell her Ponsonby cottage and buy a new place further out where she (and hopefully Craig) could see the sea.
She might even cash in her super, give Dennis some of it to help him out and use the rest to take a trip to Spain, where she had dreamed of travelling to since as long as she could remember.
She would miss Dennis. She knew that. He had been her biggest support, consistently encouraging her in her career.
His fantastic culinary skills, too, had made quite a difference at her last client function, but there were new pastures to pursue and Dennis would get over it eventually.
Dennis didn't get over it. He was (in common parlance) completely gutted. His mate at the tennis club tried to get him to see a lawyer, but Dennis was too depressed even to think about it.
Finally, after more than a few months he dragged himself along to one his friend had recommended. He was surprised. The lawyer told him that he could claim a half share of the Ponsonby cottage and quickly lodged a notice of claim so the house couldn't be sold without his permission.
Dennis also found that the super fund was their joint property too because Andrea had started contributing to the fund after they moved in together.
What was particularly alarming for Andrea was a letter from Dennis' lawyer seeking a further payment from her. It was, the lawyer said, "to compensate Dennis for the significant disparity in income between you, due to the divisions of functions in your relationship".
She read on. "Dennis' career has been put on hold in order to support you in your pursuits. He turned down three promotion opportunities and two overseas postings and now finds himself in reduced circumstances. He calculates the loss to be in the vicinity of $80,000 to $100,000."
Dennis' lawyer also sought a regular payment from Andrea of spousal maintenance as, the lawyer said, he was now unable to meet his own reasonable needs and needed a period to retrain so he could get back on his feet financially.
As an executive in a pharmaceuticals company Andrea had travelled a fair amount. Dennis' career had taken a bit of a nose-dive during that time as she had given him no choice but to come with her.
He had resigned from his then high-paying job as a computer technician and had helped with the entertaining, doing all the housework and shopping. The menial things. But she'd had no idea that he would count the cost. She was aghast.
This hadn't happened to Craig, wailed Andrea to her own lawyer. She knew that, like her, Craig and his former partner had not been married. And they had two children. Craig told her that he had given his ex half the house (because he was a generous sort of a guy, he said). But he had kept all his shares, superannuation and investments. He was paying Child Support, sure, but no spousal maintenance.
Andrea's dreams were shattered.
The key to the operation of the law here is the timing of the separation.
Although many couples have been aware of the new application of matrimonial property law to de facto relationships, not all have taken steps to do a Rod and Rachel (contracting-out agreement).
The economic disparity provisions have taken some people by surprise, as has the notion that all property acquired during the course of the relationship is relationship property to be shared equally.
Recent changes to the law have also extended the availability of spousal maintenance to de facto couples, but only to those who separated after February 1 last year.
Before the passage of the Property (Relationships) Act the law did not really consider couples like Craig and his previous partner, who were not legally married.
If they separated they could apply to the High Court for justice but that was expensive.
Those who separated after the act came into force (such as Andrea and Dennis) are treated as married couples.
Andrea could have avoided sharing much of her property and paying spousal maintenance had she and Dennis signed a Relationship Property agreement during their relationship.
If she had obtained advice earlier she would have been prepared for the financial consequences of the separation.
As for Dennis, he will be very glad he had that game of tennis. It is one thing to feel betrayed and hurt. Quite another to be betrayed, hurt and destitute.
* Vivienne Crawshaw is a family law specialist with Gubb and Partners of Auckland. She can be contacted through the Herald dialogue@nzherald.co.nz
COMMENT
Andrea was having an affair. Her new man, Craig, was an old boyfriend whom she had caught up with at a school reunion. They had been seeing each other in a clandestine way for over two years.
Craig had left his de facto wife early on in the piece but Andrea
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