You’ve decided to separate from your partner and now you need to look at sorting out your property. For many, this can be a confusing time and it may seem tricky to know where to start. We have put together a simple, step-by-step guide to getting started on your property division.
1. WHAT property do you both have?
Create a list of what property you own, both with your partner and things you think of as ‘yours’ or ‘theirs’. It is helpful to do this with your partner but not essential. Whether you have a house or other real estate together is obvious - other items of property to note are:
- Joint bank accounts
- Separate bank accounts
- Kiwisaver or any other superannuation
- Life insurance
- Company shares
- Other big items like boats or machinery
It is also helpful to list any entities you or your partner are involved with such as companies or trusts.
2. WHEN and WHERE did you get the property?
The time and method of acquiring property will help determine whether it is relationship property or separate property. You need to be aware of these two classes as relationship property is divided between both you and your partner, whereas separate property remains intact with the owner.
Your lawyer will often ask when you obtained each item of property. Jot down next to each item whether you got it before or after your relationship started. Make note of any dates you can remember too.
Where you got property from will also help determine whether it is relationship property or not. Brainstorm the sources of your property – did you save up your income and purchase it? Did your parents gift you some money? Did you receive an inheritance? Your lawyer will want to know about these sources.
3. WHO will keep each item?
This is where couples often hit a brick wall – who keeps what? It is helpful to think about your long term goals here and where you see yourself in a few years time. Some couples decide one will stay in the house and buy the other person out. Other couples decide to sell the house and divide the sale proceeds.
It is helpful to discuss this with your partner and make a plan together about who keeps what. If that is not possible, think about what you would like to do and whether it is achievable. For example, if you would like to stay in the house do you have the ability to take over the mortgage payments solo?
4. HOW MUCH is it worth?
Once you know which pool the property falls in – relationship or separate – and who is walking away with it, you need to know how much each item is worth.
There are different methods of figuring out the value of property. Some values will be obvious, such as bank accounts. Others, like real estate values, are not so simple to figure out.
If you and your partner are unable to agree on a value, you will need to consider getting formal valuations for your property.
Steps 1-4 are helpful to start thinking about when you separate. It is even better if you and your partner are on the same page as that generally saves you both time and money in the long run.
We suggest seeking legal advice from the beginning of your separation. Regardless of how amicable things are between you and your partner, it is helpful to meet with your lawyer to make a plan and make sure you are on the right track. You will also need a formal separation agreement to record any arrangement with your partner. In order for the agreement to be binding it must be in writing and each person needs to get independent legal advice on the agreement before signing, so the sooner you involve your lawyer, the easier the process can be.
For more guidance on relationship property matters come and see Georgia McDonald, she can be contacted on 09 407 7099 or firstname.lastname@example.org.