A relationship property matter turns on two dates and a list. The dates are when the couple began living together and when they separated, because equal sharing under the Property (Relationships) Act 1976 generally applies to a marriage, civil union or de facto relationship of three years or more. The list is the property and the debts: the home, KiwiSaver, bank accounts, vehicles, any business or trust, and what is owed. Add any contracting out agreement under section 21, and the first meeting can be about advice rather than inventory.
The two dates
Ask when the relationship began, when the couple started living together, and when they separated. For a de facto couple, the start date is often argued, so take the client's account in detail: when they moved in, when they stopped keeping a separate address, when they presented as a couple to family and to agencies. Three years is the threshold the Act turns on; a shorter relationship is treated differently, and the court needs a reason to make an order at all.
The Act also has time limits for applying to the court after a separation or after a death. Check them at the first meeting and write them on the file.
The property list
- The family home: the record of title, the latest mortgage statement, and a rough value. Note who is living there and who is paying the mortgage now.
- KiwiSaver: balances for both parties now, and at the start of the relationship if the client can get them. The increase during the relationship is usually relationship property.
- Bank accounts: statements for the main accounts for the last 12 months, joint and sole.
- Vehicles, with registrations and an idea of value.
- A business, a company or a trust: the trust deed, company records and recent accounts. These change the shape of the matter and the questions to ask.
- Debts: the mortgage, credit cards, personal loans and student loans, with who holds each.
- Chattels of value, and anything either party says was theirs before the relationship or was a gift or an inheritance.
Any section 21 agreement
A contracting out agreement under section 21 is valid only if it is in writing and signed by both parties, each party had independent legal advice before signing, and each lawyer certified that they explained the agreement's effect and implications. A court can still set an agreement aside where giving effect to it would cause serious injustice. Ask for the agreement and the certificates, and ask when in the relationship it was signed.
Children and the house
Care arrangements for children and who stays in the home are often the first practical questions, and they shape what the client can wait for. Record the current arrangement, whether anything has been agreed in writing, and whether the other party has instructed a lawyer.
At intake
Send the client the list above by name after the first call. The client intake checklist has it in a form you can copy. Where a client comes to the firm through a Sidqo link, the guided intake asks for the dates and takes the statements and the title as uploads, so the first meeting starts from a file rather than a folder.
Questions
Does equal sharing apply to a relationship shorter than three years?
Generally not in the same way. The Act treats relationships of less than three years differently, and the court needs a reason to make an order. The start and end dates are the first thing to settle.
What makes a contracting out agreement valid?
Writing, both signatures, independent legal advice for each party before signing, and a certificate from each lawyer that the effect and implications were explained. The court can still set an agreement aside for serious injustice.
Is KiwiSaver relationship property?
The part that accrued during the relationship usually is. Ask for balances now and at the start of the relationship.
Sidqo provides legal information, not legal representation. This guide describes the general position in New Zealand for lawyers; it is not advice on any client's matter. Check the current legislation before relying on a date or a figure.