Property (Relationships) Act: A Handy Guide for Kiwis

What is the Property (Relationships) Act 1976?

The Property (Relationships) Act 1976 sets out the rules for dividing property when marriages, de facto relationships, or civil unions end. It confirms an “equal sharing” rule in New Zealand: that all relationship property must be divided 50-50 if the relationship ends, unless the parties “contract out” of the Act.


 

The key things to know about the Property (Relationships) Act 1976:

 

  • Equal division: the Act states that relationship property is to be divided equally at the end of the relationship. One spouse may make a claim to the Family Court if they feel that they aren’t receiving an equal share of the assets.
  • Does my relationship qualify? For the equal sharing rule to apply, you must be (or have been) either married, in a civil union, or a de facto relationship (see below).
  • What if I don’t want the Act to apply? You will need a certified “contracting out” agreement, either during the relationship (Relationship Property Agreement) or once it has ended (Separation Agreement). Both of you will need to be involved, you’ll need separate lawyers to advise you on it, and those lawyers must sign the agreement with you.

 

Agreeable has crafted this handy guide to give you all the key, relevant information about the Act, covering only the most important aspects and removing as much legal jargon as possible. 

Please note: this guide does not constitute legal advice. If you have detailed questions about your specific situation, contact the team at Agreeable and we will point you in the right direction.

Read on to find out more!

property relationships act

What is usually “relationship property”?

If you are married, in a civil union, or in a 3+ year de facto relationship, the Act states that your “relationship property” must be divided equally on separation or death. 

Many have heard of relationship property, but what is it usually? To translate the Act’s large list from Section 8 into something a bit more handy, the following assets are almost always found to be relationship property:

  • The family home, i.e. where you live together (even if one of the spouses purchased it themselves beforehand!)
  • All vehicles, furniture, appliances, and other assets that have been used for the benefit of the relationship.
  • Bank accounts and share portfolios, that have been used, even slightly, for the benefit of the relationship, regardless of whose name they are under.
  • Kiwisaver/superannuation accounts, credit card & student loan debts, and life insurance policies are usually considered relationship property as well.

Most other assets are likely to be considered the “separate property” of either partner, as defined in section 9 of the Act.

It’s often best to take a “better safe than sorry” approach and consider most of your assets to be relationship property. A certified agreement, such as those offered by Agreeable, lets you both decide what is relationship property and what is separate property.

What is a de facto relationship?

The Act defines a de facto relationship as two people, aged 18 or over, who live together. “Living together”, if it has to be interpreted by the Court, can be defined based on a range of factors. These are set out in section 2D of the Act, and include: the duration, whether a shared home exists, whether a sexual relationship exists, and how finances/assets have been arranged in the relationship.

The general tip from most experts in this area is that if you believe your relationship is close to a de facto relationship, you should treat it as de facto and consider what that means for your assets. Like many things, it is better to be safe than sorry.

Tell me more about this “equal sharing” rule

The equal sharing rule gives the Act an important effect on many Kiwis’ lives. It’s a rule that recognises all contributions to a relationship, not just financial contributions, and protects partners that might not speak up for themselves.

But a 50-50 split doesn’t always make sense or seem fair to certain couples. Therefore, Kiwis are able to make their own decisions and legally formalise them. This is called “contracting out” of the Act, by getting a certified agreement. More in the next section:


Section 21: when you don’t want the Act to apply

The key section for most readers will be section 21, which allows for Kiwi couples (either during the relationship or after) to “contract out” of the Act’s equal sharing rule, and confirm their own decisions with a certified agreement.

Relationship Property Agreement 

Often called a “prenup”, “postnup”, or “contracting out agreement”, this is the version of s21 agreement that you get while still in the relationship. This agreement will typically feature a home or business that one party brought into the relationship, or even just set out that each partner would like their bank accounts, Kiwisavers, and debts to remain their own regardless of what happens in the future.

It’s best to get this early (i.e just before marriage or early in it) before your asset pool and contributions get thoroughly mixed. 

Click here to download our guide to RPAs.

You can also read our article about contracting out agreements (or prenups) here, or MoneyHub’s excellent guide on them here.


Separation Agreements

These work in a similar way, but are for separated couples to make final decisions on the relationship assets, and who gets to move on with what. Often, these agreements set out that the family home will be sold and the proceeds divided, or one party will “buy out” the other party’s share of the home. They will also usually list each party’s sole bank accounts, Kiwisaver, and debts as their own separate property.

Click here to download our guide to SAs.

You can also read our article about mortgage buyouts here, or MoneyHub’s excellent guide to Separation Agreements here.


NOTE: your RPA or SA must be certified to be legally binding

To get your agreement certified (and keep you out of court for good!), on top of the agreement itself, you will need two different lawyers (one for each of you) to:

  • Give you full legal advice on the implications of your agreement
  • Witness your signature
  • Sign the agreement with you

Agreeable offers a full, online certification service where we provide you with two lawyers from our nationwide panel, to give legal advice and sign the agreement with you via video signing. We regularly save Kiwis over $1,000 towards the total cost of the agreement. Download our guides above, or get in touch with our team today to find out more.


 

Other key points to note about the Property (Relationships) Act

 

There are a number of smaller parts & sections of the Act that may be relevant to you. We will list a few of the more common ones here, but if you have a question that isn’t answered here, feel free to get in touch us here at Agreeable. We have a dedicated team that is just an email, phone call, or live message away – we’re happy to help you figure out what you need today.

What if we have property in a trust?

Trusts do not necessarily protect assets from being considered relationship property. This is particularly true for the family home and family chattels (section 10(4)). The Family Court has been known to order compensation from the party with the trust, to the other party, for a number of factors. Trust assets can be included in contracting out or separation agreements to let you decide whose property it is. 

What if our financial positions might be quite different upon separation?

Section 15 of the Act sets out that the Court may order that the party with “significantly” lower income and living standards to the other party may receive more than half of the relationship property. While this protection is in place, enforcing it would require going to Family Court, which can take many months in New Zealand. Instead, getting a certified separation agreement would keep you out of court and save you much of the hassle.

What if our relationship lasts less than three years?

Different rules apply for relationships of a “short duration”, which is less than three years, according to section 14. For short marriages or civil unions, property is generally divided according to the contributions of each to the relationship. De facto relationships of less than three years are unlikely to apply to the Act, unless there is a child in the relationship, or if failing to bring the relationship under the Act would result in serious injustice.

What happens to relationship property if one partner dies?

If one partner dies and you don’t have a contracting out agreement, the surviving partner can choose between (a) their 50-50 entitlement under the Act, and (b) whatever is set out in the deceased partner’s will. If there is also no will, the Administration Act sets out how the estate will be distributed. Note that the surviving partner has priority over beneficiaries of a will.

What about overseas property?

The key is whether the property is “movable” or “immovable” under the Act (section 7). Movable property is anything that isn’t physical land or buildings, such as vehicles, chattels, bank accounts, shares, debts etc. The Act applies to all movable property, in NZ and overseas. Immovable property is all land and buildings. Only immovable property situated in New Zealand, however, comes under the Act and can be divided up either by court or in your own contracting out agreement. To deal with overseas land/buildings, you will need to get an agreement under that country’s laws.


 

Thanks for reading! Here are some of our other helpful articles:

What is a Prenup Agreement?

Separation vs Divorce: What You Should Know 

Five Helpful Tips To Save Time & Money on Certification

 

Separation Agreement: Things to Include to Protect Your Finances

Separation Agreement: Things to Include to Protect Your Finances

If you are separating out of a marriage or de-facto relationship, or getting a divorce, you should consider getting a separation agreement.  Other than Court, it is the only valid way of dividing relationship property once a relationship ends.   Some people do this process informally, however, this can result in arguments and Court down the line.

But going to court can be very costly. While the relationship is still on good terms, you might want to negotiate a separation agreement.

Essentially, your separation agreement allows you to dictate how your assets will be divided.  If you get a valid separation agreement, this will override the provisions of the Property (Relationships) Act 1976. But in order for the separation agreement to be legally binding on both parties, the following criteria must be met:

  • the agreement is in writing;
  • it is signed by both parties
  • both parties have had independent legal advice (a different lawyer each);
  • both lawyers have to sign and witness your signing. The lawyer also certifies that they explained the effect and implications of the agreement to you.

 

What you can expect in our Separation Agreement ‘template’:

Our Agreeable separation agreement includes aspects such as:

  • The relevant dates of the relationship (when you were married or started living together, when you separated);
  • What will happen with the family home and any mortgage on it;
  • What will happen with the chattels, furniture;
  • Any bank accounts and what is to happen with those;
  • Motor vehicles and who gets what;
  • Kiwisaver and superannuation;
  • Debts – who is liable for those;
  • Any adjustments to be made or adjustment payments to make;
  • Administrative clauses, such as the requirement to make complete disclosure and to execute any necessary documents;

We recommend ensuring that you have all the relevant information (most of the info above should apply to you) before purchasing the agreement.

Then, in the certification stage (which you apply for after purchasing, completing, and receiving the agreement):

  • Each party gets independent legal advice on the implications and effects of the Agreement;
  • Costs – normally each party pays their own costs and shares the cost of the agreement and certification; and
  • Witnessing by your lawyer via video signing technology

 

Things to include in your Separation Agreement

If you are married or in a civil union with your partner and you later decide to apply for a divorce, you can also use the separation agreement as evidence that you have been apart for 2 years. It is necessary to show that you’ve lived apart for two years before you can apply for a divorce.

Before you go ahead and purchase Agreeable’s Separation Agreement, here are some key things most couples think about when they get a separation agreement.

 

The Family Home

One of the main assets couples own is the home. Regardless of who paid for the Family Home, it will usually be relationship property.

When you separate, you can sell the main Family Home. The sale will be divided in half and shared between you and your partner. Otherwise, one party may keep the house and buy the other partner out. This might be desirable if you have children to consider.

In the Family Court (i.e if you don’t have a signed, binding separation agreement), the judge guides their decision by general principles. You might like to think about these principles when dividing your own relationship property:

  • That since each partner has contributed equally to the relationship, the assets will be shared equally too i.e. split in half
  • The Court won’t look at who is ‘at fault’ for breaking up the relationship
  • Unpaid domestic work has equal value to economic work

Getting a separation agreement means that you don’t have to divide your assets in this way. If you are purchasing a separation agreement and then seeking your partner’s approval, you can show them that you have thought about fair terms.

 

What about Separate Property?

But you and your partner may also have other assets which are not relationship property.

An example is other investment home(s) which are not the Family Home. This could be ‘separate property’ which does not come under the Relationship Property Act if it can be determined to not be relationship property. Separate property remains the property of the partner who owns it.

Situations can get complicated. For example, sometimes both partners own a home capable of becoming the family home. Generally, when relationship property is to be divided, the home of only one partner will be considered the main Family Home.

Separate property can include property one partner got while they were not living together as a couple. Or it can be property that a partner acquires from another such as an inheritance (unless this property gets mixed with relationship property). If you need legal advice on your individual circumstances, Agreeable can help you find Family Law experts.

Childcare Arrangements

If you have children from your relationship to consider, our Separation Agreement, does allow you to detail what your day to day care and contact of your children will be, access and other major decisions regarding the upbringing of your child or children if they are still minors. Parenting plans are also common and helpful. The court will only be concerned only with what is in the best interests of the children when they consider child-care arrangements.

 

Your own or your partner’s debt

You or your partner can be liable for any personal debts (even if they are solely in your partner’s name) if they are considered relationship debts. Relationship debt includes any joint debts or debt that is solely in your partner’s name if:

  • the debt was related to the relationship property. For example you used it to get a loan on a car you both used, or for a business you both benefited from;
  • the debt was for the benefit of both partners. For example rent, debt to buy furniture;
  • the debt is the result of the cost of bringing up any children you have together.

You can deal with how to divide up any joint debts or whether one party takes these debts over and provides an indemnity for that party not taking over the debt. Think about your current credit card debts, any remaining hire purchases, student loans etc.  Your lawyer will ask for more information if there are not enough details in your separation agreement. We recommend you spend some time listing these out with your partner.

 

What about Kiwisaver?

If you have contributed to Kiwisaver after your relationship started, or another employment scheme such as the Police Superannuation or other government scheme, then you need to share this amount with your partner when you separate. Generally, this will be split in half. Your certifying lawyer will need to see proof of the value of your Kiwisaver – unless it is only a small amount.

You can withdraw your Kiwisaver on the grounds of significant financial hardship and serious illness. Your Kiwisaver scheme manager will need to be reasonably satisfied that you or your partner is suffering or is likely to suffer significant financial hardship. Then you can make a significant financial hardship withdrawal. Significant financial hardship includes significant financial difficulties which can come up after separation.

 

Finally, is your agreement fair?

If you do have to go to court, it is likely that the judge will determine whether:

  • the agreement is fair;
  • you both worked on the agreement without pressure and entered into it freely;
  • it covers all your assets after full disclosure.

The extent to which a judge will stay with your agreement reflects the level of his acceptance of the above three points.

If one of you is in breach of the deed of separation and the other goes to court to enforce it, the judge can alter the terms of the agreement.

A separation agreement is useful in so many ways. It allows for certainty, it ensures your separate property stays your separate property, and probably most importantly, it helps to give parties closure.  

 

Get your Separation Agreement with Agreeable

People are increasingly turning online to meet their everyday needs. Technology can make this a more satisfying, efficient and easier process. Agreeable offers the following ‘DIY’ services and steps so that you can move on:

  1. Purchase our agreement. You fill out a questionnaire for 10-30 minutes online, and we automatically generate your tailor-made agreement;
  2. Apply for certification of your agreement with our team of expert family lawyers.

Keep in mind that trusts and businesses can make your situation more complicated and increase legal fees at the certification stage.  Please talk to one of us at the Agreeable team about your situation, and we’ll be happy to help.

Disclaimer: Any information we provide is general information. Please do not rely on the contents of this article as legal advice. Agreeable is not a law firm or a substitute for a law firm. 

The government is doing new things for housing – so are we!

The government is doing new things for housing – so are we!

Yesterday morning the Government announced a nearly $4 billion package that includes increased support for first-home buyers and aims to make buying your first home that little bit easier. Coincidentally, Agreeable is trying to do the same thing! In the coming months, we will be launching a Deed of Debt and a Deed of Gift that will help you make your home-buying experience simpler.

We talk to a lot of first home buyers who want to document how their new home will be split between them and their partner. We also hear from nervous parents who say “I’m lending my child money for a house deposit. How do I protect myself and make sure things don’t go topsy turvy if my child and their partner split up?”.

So far, the answer to this has included 1) ensure the lucky new home buyers get a relationship property agreement, and 2) think about documenting the loan! Until now, we’ve mainly helped with the first bit, but with our new Deeds of Debt and/or Gift, we’ll be helping you document a loan or a gift as well (and we can ensure that the agreement links up with the Deed – no loopholes!).

The Government is hoping that its new package will result in more houses being affordable. The key changes include increasing the bright line test to 10 years, staggered removal of interest deductions and lifting the First Home Grant caps.

But what if you’re still looking to get your deposit (or part of it) from somewhere else? We know that coming up with a house deposit can still be tricky. That’s why we commonly see people getting gifts or loans from family to help them make that big purchase. In the coming months, we will be launching our Deeds of Debt and Gift, to help make the loan/gift process more straightforward.

Getting a loan from the bank of mum and dad? Document it using our Deed of Debt! Receiving a gift from a kind friend who wants you to “settle down”? Document it with a Deed of Gift! Soon you will be able to access Agreeable’s user friendly document automation tools to create your own Deed, to suit your own circumstances. As always, our friendly team will be on hand to help, and our expert lawyers will be on standby in case you need legal advice. Watch this space!

Please note: Agreeable does not provide legal advice, but we provide online access to lawyers who do. If you require legal advice, please get in touch with us.

Separation Agreements and the family home

Separation Agreements and the family home

It goes without saying that separating from your partner is often a difficult experience. There is a lot to figure out, particularly when you have been together for a long time. Central to what needs to be figured out is what you are going to do with the family home – in most cases, a couple’s largest asset.

We have found that the most common way to deal with the family home is for one person to buy the other’s persons share of the home – in other words, for one of you to “buy the other out”. Under NZ’s relationship property laws (found in the Property (Relationships) Act), the family home is usually split 50/50. However, often one person has put more money into the deposit (and didn’t think to get a prenup) or one person has contributed more to the mortgage.

In those situations, the couple might then verbally agree how much one will pay the other for the house. To them, the verbal agreement is simple, easy and they know where they stand. Unfortunately, for them either the bank (or, perhaps, the bank of mum and dad) want the agreement in writing. This is where a separation agreement comes in.

Suddenly, what seemed to be an amicable and simple split can become a rabbit hole of confusion.

Where do we get one? How much will it cost? What is involved? Do I have to see a lawyer? What if they want us to change our agreement?

 

This is where Agreeable comes in.

Agreeable takes the niggle out of getting a separation agreement. We offer a template for parties to make their own written agreement at a fraction of the cost of getting a bespoke agreement from a lawyer. Two independent lawyers can also then be provided to certify the agreement (which makes it legally binding) at a fixed price. Best of all, the entire process can be completed online.

Our goal is to give the written separation agreement a simple and easy feel – just like when the parties verbally agreed. We work with parties to help them understand what is required, how much it will cost and what is involved.

If you have recently separated from your partner (or are about to buy a house with your partner), send us an email and we will help you figure out what your situation requires. Separating is hard enough, it doesn’t need to become a scary legal battle too. We’re here to help make everything a little bit more… agreeable.

Please note: Agreeable does not provide legal advice, but we provide online access to lawyers who do. If you require legal advice, please get in touch with us.

CODR is now Agreeable!

CODR is now Agreeable!

Dear CODR customers,

We are excited to announce that CODR has transitioned to Agreeable. CODR grew significantly over the past year and the decision to rebrand has brought with it an opportunity to focus our offering. This means we will no longer be providing online dispute resolution services; however, we will continue to offer our expert and industry-leading relationship property services.

Agreeable’s offering will include:

  1. Updated processes for relationship property and separation agreements;
  2. A fresher and slicker website;
  3. Better support for those who purchase an agreement through us;
  4. More options for online signing;
  5. A bigger network of expert certifying lawyers; and
  6. the same great service!

Our new brand brings with it a professional, practical, and personal approach to relationship property. Our aim has been to develop a service that takes the ‘niggle’ out of getting a prenup or separation agreement. We believe we have done that, and we hope you agree.

We are super excited about our future as Agreeable and are continuing to look at ways we can turn the traditional legal model on its head.

If you need help with setting up a prenup or a separation agreement, don’t hesitate to get in touch – info@agreeable.co.nz OR 0800 9 AGREE.

Best wishes,
The Agreeable team