Overseas Assets; New Zealand – separating in different countries – Property settlement agreement

23/11/2015

Watson & Watson were consulted by Mary who needed advice in relation to how to achieve a division of property following a breakdown of the marriage to James.  James and Mary are Australians but met in and married in New Zealand in 2000. 

James is a sales person who worked for a large property developer. Mary worked in retail. They had operated a business together in New Zealand and had a house in Auckland and two investment apartments.  They had done well financially in New Zealand. They did no have any children.

James had a high income and had received significant bonuses by working hard to achieve his sale targets that allowed him to purchase (in his name) property including a house in New Zealand. 

James and Mary separated. 

James came to Australia and took up an executive position with an Australian property developer.  James used matrimonial funds to purchase an apartment in Sydney. 

Mary was still in New Zealand and was not sure whether she would stay in New Zealand or return to Australia. 

James told Mary that he wanted a divorce and that they need to achieve a property division. James wanted to sell everything and bring the money back to Australia. Mary was concerned as James had moved to Australia and that he had applied for a divorce in the Federal Circuit Court of Australia.  Mary sought advice from Richard Watson of Watson & Watson family lawyers Sydney as to the best course to adopt to achieve a divorce settlement and property settlement.  We considered the laws that applied and the benefits of brining the case in New Zealand or the Family Court Sydney.

Dennis Grant an experienced family law lawyer of Watson & Watson identified and advised Mary in relation to how to achieve the most favourable outcome.  This required an understanding of the difference in results depending on whether proceedings were commenced in New Zealand or Australia.

In New Zealand the Courts approach the matter differently to the approach taken in Australia and the approach taken was to Mary’s advantage in terms of outcome, timing and costs.

The Property (Relationships) Act (New Zealand) creates two categories of property.  Those categories are separate property and relationship property.  Separate property, in general, is all property that is not relationship property on separation.  Separate property remains the property of a person who owns it and it is not divided between the husband and the wife.  It includes property that the parties owned before the marriage, civil union or de facto relationship and any gifts and inheritances that the party received during the marriage, civil union or de facto relationship.

The position in New Zealand is that the Relationship Property is to be divided equally unless there are extraordinary circumstances that make equal sharing “repugnant to justice”.  The relationship property is divided equally unless there are extraordinary circumstances. This “presumption” does not exist in Australia where the Court will look at the various contributions made by each of the parties and the needs of each party to an adjustment pursuant to section 75 (2) of the Family Law Act.

Mary was advised that James would do better under the Australian system than he would under the New Zealand system.

Watson & Watson advised Mary that it is in her best interest to commence proceedings in New Zealand and to take advantage of the more favourable system in that country.

Please do not hesitate to contact Richard Watson or Dennis Grant our experienced divorce lawyers who have extensive experience in dealing with many overseas countries and their different jurisdictions and laws.

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