Vivienne Crawshaw: What's yours is mine in marriage property

COMMENT


Murray's family were farmers. When he wed Helen in 1988 they were a bit wise to the fact that some ladies were gold diggers.

They consulted their lawyer (the same firm had served Murray's grandfather) who told them not to worry, the bit of land they had carved up for Murray was his own separate property and Helen couldn't get her mitts on it even if she did turn out to be acquisitorial.

The reason it was Murray's separate property was that he had acquired it before he and Helen tied the knot and it was not as though they would live on the farm, said the lawyer. The lawyer mentioned that he usually steered clear of matrimonial work as he and Murray's Dad had a round of golf, but assured him that it was not a problem.

Helen had aspirations for Murray. They had met at Massey when she was doing a BA. He'd switched from studying agriculture to accounting. Helen's view was that there was more money to be made there than on the farm.

So, despite the fact that his heart ached for the pastures of the sheep paddocks he'd grown up on in the Hawkes Bay, he and Helen settled in Gisborne.

Murray set up his own practice and advised farmers on their accounts, secretly wishing that he could join them in their Swanndris and gumboots.

The marriage was not happy. Helen was ambitious, not for herself but for Murray, but she felt he lacked drive.

Murray dreamed of returning to the farm life if he could persuade Helen that it was viable. He saved hard and when he had amassed a little extra he diverted it to the farm.

The property glowed with the attention Murray gave it when he could. Money was poured into the paddocks in the form of fertiliser, new fences, irrigation and general improvements.

He even sectioned off a few acres and got it ready for planting grapes.

Helen was not impressed. "How about a new kitchen or carpets?" she queried.

Murray tired of her whinging. He told her where she could put her carpet and that if it wasn't for her they'd be living on the farm instead of being holed up in Gisborne.

Helen had had enough. She left, taking their two children with her. She wanted more for the children, she said: a private education, a better home.

"You're a snob," he told her when she shifted out. "And you're a loser, Murray," was her parting reply.

In fact, Helen's words rang truer than she may have intended.

When the lawyers started dividing the property following the split, it became clear that Murray would lose more than he would ever have dreamed in his worst nightmares.

First the house, which his parents had helped him buy, was to be shared equally between them. That hurt, because in his view Helen had done nothing but sit on her proverbial over the last eight years and whine.

It did not matter that the house was in his name only. Worse, the lawyer explained that even though he'd set up the business with his own sweat it was relationship property, good and proper, because he had established it after they had got married.

There might be a way to keep a lid on its value, said the lawyer, but with a body of clients that Helen knew all about he'd have to pay her something for it.

"The farm. At least I've got the farm," Murray thought. But it was not to be so. Helen was able to prove that the 400 acres in Haumoana was worth more than double its value at the date of the couple's marriage.

Although it had been Murray's separate property, the increase in value of the farm became relationship property belonging to the couple.

The reason, explained Murray's new lawyer (a specialist in family law, unlike his father's golfing buddy), was that Murray had applied relationship property to the farm, improving it and therefore partly explaining its increase in value.

"I did not," said Murray, visibly tense. "I put extra drawings from my business into the farm that wasn't hers in the first place."

Sighing and making a mental note that accountants were not always that quick on the uptake, the lawyer explained that any income received during the marriage was relationship property and applying some of it to the farm did the trick.

It did not matter that farms in the area had gone up in value anyway. Helen was paid out half the increase in the value of the farm, $200,000 on top of half the house and business.

Murray's dad found it so galling to help Murray pay Helen out that he suffered a minor coronary. His golfing friend decided to restrict himself to conveyancing and Murray steered clear of women while he concentrated efforts on the farm.

The property went straight into a family trust and any new woman on Murray's horizon was going to find herself faced with a contracting-out agreement before she set foot in the house. Murray was once bitten, twice shy and it would not happen again.

* Vivienne Crawshaw is a family law specialist with Gubb and Partners of Auckland. She can be contacted through the Herald: dialogue@nzherald.co.nz