BUSINESS LAW 2.

TUTORIAL 3 - RELATIONSHIP PROPERTY

WEEK COMMENCING 14 AUGUST 2023

Read sections 8, I0 and 21 of the Property (Relationships) Act I 976

(available on WWW. legislation. govt. nz). For a couple who have been in a
de facto relationship or married for more than 3 years, is the following
relationship or separate property?

(a) The family home.

(b) A bank account owned jointly.

(c) A superannuation policy.

(d) An inheritance received by one of the couple which has been kept
in a separate bank account.

(e) A family holiday home that was owned by one of the couple prior
to the relationship and which was recorded as separate properly
under an agreement pursuant to section 21 of the Act.

(f) What are the implications of property being relationship property

or separate property?

Read the attached case DM V MP .

(a) What was the main issue for Mr M?

(b) How is a de facto relationship defined? How easy is it to

determine when a de facto relationship starts?

(c) Do you agree that Mr M is in a de facto relationship with Ms P

(what where the factors that pointed to this)? Do you think he was
also in a de facto relationship with Ms X?

(d) What would happen on the division of property if Mr M was in a

de facto relationship with both women?
Read the attached article "Relationship Property: Not Always 50/50"

(a) After three years of a de facto relationship and/or marriage (a

combination of both qualifies) there is a presumption that
contributions to the relationship are equal and therefore the
division of relationship property shall be equal. What is the test in
section I3 of the Act for upsetting that presumption of equal
sharing?

(b) Look at the examples in the attached article when the court may
depart from the presumption of equal sharing and discuss
circumstances where you think the test for setting aside the
presumption of equal sharing of relationship property would be
met.
D V MP, t20.21 NZHC 503 (2012)
[2012] NZFLR 385,2012 WL 1071392

120121 NZHC 503

High Court, Wellington
DM V MP

CTV-2011-485-1421
Hearing: 2 February 2012
Decision: 22 March 2012
Miller J

Synopsis
Unsuccessful appeal by M against Family Court ('FC') judgment; P sought to file claim under Property (Relationships) Act
1976 (PRI\) and with respect to that applied to FC for declaration that she and M in de facto relationship which ended no
more than three years prior to filing; FC held M and P lived together in de facto relationship for purposes of PRA at time
when M maintained lived with another partner ('X'); FC found that M and P lived in de facto relationship from beginning
2002 until June 2003, relationship ended for brief period when M moved in with X but relationship resumed August 2003
and finally ended March 2010; FC considered M and P's continued financial interdependence, appearances in public as
couple, gifts and travel and maintained M's involvement with X and lack of fidelity not sufficient to outweigh those
considerations; M filed appeal against FC decision that he and P resumed their relationship on basis FC misdirected itself and
failed to consider questions posed by PRA objectiveIy; M maintained that after June 2003 he was in committed relationship
with X although aimitted to continued sexual relations with P

Held, M's submissions failed to establish that FC erred in finding de facto relationship existed between M and P from August
2003 untilMarch 2010; relationship retained throughoutimportantindicia of de facto relationship such as they (a) cohabited
for substantial period and P lived in M's house rent-free at other times, (b) had substantially merged financial affairs, (c)
conducted themselves as couple in public, (d) supported P's son and (e) maintained sexual relationship notwithstanding M's
relationship with X; they evidenced substantial commitment to one another which continued until March 2010; appropriate
FC decision up held; appeal dismissed

Classifications (2)

111 Civm procedure Detennination

121 rammy law Relationship in nature of marriage

Legislation Considered
Family Law Act 1975 (Cth)
Interpretation Act 1999 (NZ) s 29A
Property (Relationships) Act 1976 (NZ) s IM(b), s 20(I)(b), s 20(2), s 20(3) s 20(4) s 24(I)(c) s 52B
Property (Relationships) Act 1984 (NSW) s 20

Party Names
DM dippellan4), MP (Respondent)

Legal Representatives
R Laurenson for Appellant; R Fatga for Respondent; Sitwvrights Law, Welling ton for Appellant; The Law Store, Portrua
City for Respondent

Opinion

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D V P, [2012] NZHC 503 (2012)
120121 NZFLR 385,2012 WL 1071392

JUDGMENT OF MILLER J

Miner J

t11 The Family Court held that DM and MP lived together in a de facto relationship, for purposes of the Property
(Relationships) Act 1976, at a time when DM maintains that he was living with another partner, Ms X. From that
judgment he brings this appeal.

The narrative
121 The parties began dating in 1999. in 2000 MP and her then six-year old son moved into DM's home. She took paid
employment in his business, working from his office at the home. They became engaged. They set up a joint
account. into it were paid their wages, and from it were paid rates, insurance, a mortgage and household living
expenses. DM also supported MP's son, to whom he formed a fatherly attachment which appears to have continued
throughout

in June 2003 DM left the home and moved in with Ms X, with whom he had commenced an affair the previous
year. He left after MP discovered the relationship and issued an ultimatum. At first he told MP that he was going to
live with his mother.

MP and her son continued to live in the house, which they shared for some time with her sister. MP paid no rent,
but her sister did. The parties remained on good tenns. DM still came to the home for work, and they continued a
regular sexual relationship. Their financial arrangements did not change, and they did not pursue a proposal to
settle their financial affairs. MP and Ms X knew something of one another's relationship with DM, and he went to
social engagements with them separately. He continued his relationship with MP after learning that she had had an
affair with another man in 2006, but he resented that relationship and his intervention brought it to an end

Although DM cohabited with Ms X, he did not set up a joint bank account with her or otherwise integrate their
financial affairs. it seems she was financially independent.

in February 2007 DM moved back into the home with MP. By that time he had transferred ownership of the
property to a family trust, without MP's knowledge. He claimed that he left Ms X's home only because of conflict
with her daughter and was merely boarding with MP. He continued his relationship with Ms X.

in June 2008 un left the home while DM was travelling in the United States. Their relationship had become
strained and DM had been looking for another house to live in. The realisation that DM and Ms X spent the last
night before his trip together was the final straw for MP. However, she was persuaded to join him overseas for the
last leg of his journey. The relationship continued after they returned to New Zealand, but MP never returned to
live at the home

in March 2010 MP ended the relationship. luriderstand that DM's relationship with Ms X still continues.

The issue
191 The Family Court found that the parties lived in a de facto relationship from the beginning of 2002 until June 2003
but the relationship ended for a brief period when DM moved in with Ms X. it resumed in August 2003, ending
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D V P, 120.21 NZHC 503 (2012)
[2012] NZFLR 385,2012 WL '07/392

finally in March 2010. The appeal concerns the finding that the parties resumed their relationship. DM maintains
that after June 2003 he was in a committed relationship with Ms X, although he admits to an affair with MP.

The Family Court decision

1101 Proceedings must be commenced within three years of the relationship ending. MP filed these on 3 June 2010. She
pleaded that the parties were in a de facto relationship between January 2000 and 2 July 2004 "and then on and off
for 10 years" and "separated finally" on 4 March 2010. DM took the point that the application was out of time. The
Family Court was asked to detennine whether a de facto relationship existed, and if so when. Its judgment, like this
one, is confined to that issue.

The Judge concluded without difficulty that a de facto relationship existed until June 2003. In reaching that
conclusion he rejected as incredible DM's evidence that although he invited MP to live with him, set up a joint
account and shared household duties, purchased gifts for her, became engaged, and presented her publicly as his
partner, the parties never entered a relationship in the nature of marriage or lived together as a couple

1121 The Judge held that the legislation admits the possibility of more than one de facto relationship at the same time.
The question is whether the relationship has the hallmarks of marriage. it is a question of fact. There had been a
close relationship with a brief hiatus in inid-2003 when the parties discussed the division of property, but the
parties chose to continue the relationship after August 2003 although it was no longer exclusive. Not until2010
was there a clear intention that the relationship was at an end. The Judge pointed to the continued financial
arrangements, appearances in public as a couple, gifts and travel. The only difference between this and a marriage
was DM's involvement with Ms X, but fidelity is not essential. The relationship with Ms X did not display all of
the same characteristics. DM's claim that he was in a committed relationship with Ms X and not with MP was
"sheer nonsense".

The appeal
t131 On appeal, DM contends that the Judge misdirected himself, failing to answer the question posed by the legislation;
whether the parties lived together as a couple. He mistakenly asked whether the relationship was in the nature of
marriage. The test is not an objective one, as the Judge suggested; the parties' intentions matter. The Judge placed
insufficient weight on the lack of mutual coinmiiment to a life together, the evidence that the home was also a
workplace, the long period during which they lived apart (June 2003 until February 2008, and June 2008 until the
present), the evidence that un stopped wearing her engagement ring, his relationship with Ms X which raised the
possibility that he was in a de facto relationship with neither of them, and MP's lack of interest in his hobby,
boating.

1141 It is not in dispute that this Court must form its own view of the merits on appeal, but the appellant must show that
the Family Court Judge was wrong and I must recognise the advantage that the Judge had when assessing
credibility and reliability. He observed the witnesses over two days.

The legislation
t151 I begin by considering how the legislation defines a de facto relationship and how it responds to cases in which a
couple have contemporaneous relationships with other people.

t161 The Property (Relationships) Act 1976 defines a de facto relationship as a relationship between two adults who

WESTLAW @ Thornson Reuters 4

D V MP, 120121 NZHC 503 (2012)
[2012] NZFLR 385,2012 WL 107,392

"live together as a couple" and are not married or in a civil union with one another. When a court deals with the
only controversial limb of this definition, whether two people live together as a couple, all the circumstances of the
relationship are to be taken into account, including any of a list of indicia that may be relevant in the particular
case. That list is found in s 20(2):
"20 Meaning of de facto relationship
(2) In detennining whether 2 persons live together as a couple, all the
circumstances of the relationship are to be taken into account, including
any of the following matters that are relevant in a particular case:
(a) the duration of the relationship:

(b) the nature and extent of common residence:

(c) whether or not a sexual relationship exists:

(d) the degree of financial dependence or interdependence, and any

arrangements for financial support, between the parties:

(e) the ownership, use, and acquisition of property:

co the degree of mutual commitment to a shared life

(g) the care and support of children:

(h) the perlonnance of household duties

(1) the reputation and public aspects of the relationship. "

No finding about any of the indicia in that list is necessary. A court may consider such indicia, and attach such
weight to any of them, as seems appropriate in the circumstances. So, for example, the parties need not invariably
share a common residence; it is for the court to decide what weight to attach to cohabitation.

t181 A de facto relationship ends if the partners cease to live together as a couple or one of them dies.

1191 The Act contemplates, albeit indirectly, that a person may live in more than one de facto relationship at any given
time. Section 52B addresses the priority of competing de facto claims, distinguishing between those cases where
relationships were successive and those where they were "at some time contemporaneous". The legislation thus
establishes that a de facto couple need not "live together" to the exclusion of others' More than that, a person may
live in more than one de facto relationship at any given time, so the idea of a relationship in which two people "live
together as a couple" must accommodate that possibility.

t201 Parliament chose this definition rather than the familiar concept of a relationship "in the nature of marriage",
although the latter survives as a definition of de facto relationship for general purposes in the interpretation Act
1999. The definition is relevantly identical to that now found in the Property (Relationships) Act 1984 (NSW).

The evolution of the definition offers some insightinto its meaning. When first enacted, the 1984 New South Wales
legislation simply provided that in a de facto relationship the parties live together "as husband and wife on a bona
fide domestic basis" although not married to one another. in D V MCA, a 1986 decision, the Supreme Court of New
South Wales established a list of indicia of such relationships, emphasising as it did so that relationships may vary
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D V MP, t20.21 NZHC 503 (2012)
[2012] NZFLR 385,2012 WL 1071392

marked Iy and the inchcia were not exhaustive. That list is identical to, and plainly the primary source of, the indicia
now found in s 20(2). in 1999 the New South Wales legislation was amended to the same "living together as a
couple" definition that is now found in the New Zealand legislation. That was done not because it was thought that
a de facto relationship differs in substance from mamage but because same-sex couples, whose relationships the
1999 amendments capture, could not marry. The amendments also added the list of indicia from D V MCA,
although the indicia had addressed the fomier definition, a couple living together "as husband and wife". The New
South Wales legislature evidently found the indicia no less applicable to the new definition than the old

t221 in New Zealand the Justice and Electoral Select Committee copied the 1999 New South Wales definition, including
the indicia, because "in the nature of marriage" was thought to be uncertain and because some submitters had been
offended by de facto relationships being defined in that way.

t231 The legislation delegates to the courts the work of deciding what minimum characteristics are required of a de facto
relationship or, to put it another way, what it means to live together as a couple. All inquiry into substantive
characteristics is unavoidable not because de facto relationships need differ from maniage but because, unlike
marriage, they need not be created by ex ante agreement. The court must decide not only what characterises a de
facto relationship but also when such relationship began and ended. Marriage and civil unions are opt-in
relationships in which the commencement date is known, but the law may impose the legal status of a de facto
relationship retrospectiveIy upon parties whose relationship gradually and without conscious election assumed that
character

t241 These decisions are minnsically difficult in the marginal cases that reach hearing, and they matter all the more
because the Act generally affords de facto relationships of more than three years duration the same status as
marriages. The Act's objective of extending the community property regime from marriage to de facto relationships
rests on the explicit premise that in such relationships, as in mamage, both parties nomially contribute in different
but equal ways. Put another way, the legislature had in mind relationships in which the differing conttibutions of
two people to their shared life justify the presumption of equal sharing. in this respect the Act differs distinctly
from the New South Wales legislation from which the definition was taken. That legislation created a specific
community property regime for people in de facto relationships. it did not establish a presumption of equal sharing
of relationship property; rather, the criterion for division was justice and equity. A different community property
regime applied to marriage.

t251 in summary, several points may be drawn from this discussion of the legislative purpose and history. A de facto
relationship under the Act is one which, no less than mamage, justifies the presumption of equal shaving. it is a
relationship of substance. But unlike marriage the status of a given relationship rests on a judicial inquiry into its
substance. When undertaking that inquiry the court must consider whether factors that earlier judicial decisions
established as indicia of relationships in the nature of marriage are relevant, and if they are it must place them in the
balance, giving them such weight as seems right. However, the question that the court must answer is not whether a
given relationship exhibits any or all of the indicia, which were included to draw the court's attention to relevant
considerations. The question is whether the parties lived together as a couple.

t261 A court must interpret the terni "de facto relationship" in its specific legislative setting. When the definition is
read against the purpose and history of this legislation, a mutual acceptance of exclusivity, relative to other
potential pathTers in general, interes in the notion of living "together" as a "couple". in ordinary usage to live is to
spend one's life in a particular way, to supply oneself with the means of subsistence, to make one's home in a
particular place. The statutory indicia of a shared life are broadly consistent with a substantial degree of exclusivity
in qualifying relationships. They may be summarised as relationship duration, which is likely to have been
indefinite when established, cohabitation and household duties, financial interdependence and property use or
ownership, sexual dimension, children, and public status

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D V MP, [2012] NZHC 503 (2012)
[2012] NZFLR 385,2012 WL 107,392

t271 Two points of particular relevance to this case should be made about the Indicia. First, it has been suggested that
one of them, mutual coinmiiment to a shared life, lies at the core of the definition. I take that to mean that a mental
commitment to sharing life is nomially required of a de facto relationship. The other indicia establish, however,
that such coinmiiment may be evidenced by conduct.

t281 Second, a de facto relationship is likely to involve cohabitation; that is how most couples choose to share their
lives, and the legislation was enacted because unmarried cohabitation had become commonplace. To recognise
that is not to deny that sometimes couples choose to conduct a shared life without cohabiting. Nor is it to suggest
that cohabitation is paramount; the legislation says otherwise. Nor is it to suggest that a couple who cohabit are
necessatily in a de facto relationship. it is merely to point to a feature that experience identifies as common to most
de facto relationships and for that reason significant for a court which is assessing any given relationship.

[29] it follows from all of the above that contemporaneous de facto relationships are not likely merely because the
legislation admits their existence. On the contrary, a contemporaneous de facto relationship with a different partner
tends to show that the relationship before the court lacks the character of a life lived as a couple. The legislation
governs division of the property of a relationship between two people. and there must be natural limits to one's
capacity to spend the only life that one has in contemporaneous bilateral relationships with more than one person.
Sometimes neither relationship qualifies as a de facto relationship. Contemporaneous de facto relationships may be
most likely when A cohabits into unittently with each of B and C, maintaining two households on an indefinite
basis. Each such relationship might be so substantive that the legislative objective would be defeated were A
peruiitted to escape legal obligations to B and C by pleading that neither relationship was sufficiently exclusive.

The test applied in this case

t301 it follows that in my opinion the Judge did not err by referring to a relationship in the nature of marriage. He did
not substitute that test for the language of the statute, and even if he did the point offers no aid to DM. it cannot be
suggested that such test is too liberal. Nor, contrary to Mr Laurenson's submissions, did the Judge employ the
objective criteriain s 20(2) to the exclusion of the parties' evidence about their subjective commitment. The Judge
held that the views of the parties "have some relevance" but the Court must make an objective assessment of the
facts. After reviewing the evidence the Judge also inquired rhetoricalIy how it was all to be viewed "from an
objective perspective". Mr Laurenson emphasised the latter statement, but on the face of it the Judge was merely
reminding himself of the need for objectivity in the exercise of his own function. The evidence reviewed included
the parties' own beliefs about their relationship, and the Judge concluded that DM must have "seen himself' in a
relationship with MP

Were the parties living together as a couple?

t311 The parties did live together as a couple until June 2003. That is no longer controversial. The Judge found that the
relationship ended for a brief period, resuming about August 2003. He founded that conclusion primarily on the
parties' discussions in June 2003 about dividing their property

t321 The question is whether the previous de facto relationship did resume. in most respects it did. What differed was
the now more or less open relationship with Ms X, the fact that between June 2003 and February 2007 DM shared a
house with Ms X, and the fact that they lived apart after June 2008, when un left the house

I am not persuaded that the Judge ought to have placed more weight on the relationship with Ms X, for three
reasons. First, DM's relationship with Ms X displayed fewer indicia of a de facto relationship; they did live in the
same house for a considerable time and go out as a couple, but they never merged their financial affairs. DM never
WESTLAW @ Thornson Reuters 7
DM V MP, 120121 NZHC 503 (2012)
[2012] NZFLR 385,2012 WL1071392

formed the same attachment to Ms X's daughter, who evidently resented him, that he has to MP's son. I observe
that while Mr Laurenson described the relationship with Ms X as committed, he avoided characterismg it as a de
facto relationship and the Family Court Judge plainly considered it a less substantial relationship than that with MP
in the circumstances, I am not prepared to hold that this is a case of contemporaneous de facto relationships

1341 Second, robust indicia of a de facto relationship with MP remained while he cohabited with Ms X. They chose not
to settle the division of property in 2003, after agreeing that they would do so. What stopped them was the
resumption of their relationship. indeed, what happened in inid-2003 might be better characterised as a separation
MP remained in the house, which was in law DM's to control, and she did not become a tenant. They retained their
joint bank account and their salaries were still paid into it. From that account they still paid the mortgage, rates and
insurance and MP's living expenses. They retained joint medical insurance. They socialised together. Their sexual
relationship continued. I reject Mr Laurenson's submission that these things can be described as historical. As the
Court held in Scragg v Scott, the Court is likely to find that an established de facto relationship subsisted until
someone took steps to end it. That happened in March 20 10, when MP finally called a halt.

t351 Third, DM conceded that he had "played" both women, neither of whom approved of the other relationship or
knew its full extent. DM saw him as her partner with him enjoying a sexual liaison elsewhere, because that is what
he led her to believe. The Judge found him a poor witness, rejecting as incredible his claims that when he returned
to live with MP he was a mere boarder. Ms X did not know that he camed on a sexual relationship with MP. Mr
Laurenson emphasised that misconduct cannot detennine the nature of the relationship; that is, the Court should not
allow its view of DM's behaviour to alter its assessment. But while he fomied a poor opinion of DM, the Judge did
not place too much emphasis on his treatment of MP. Rather, he fairly observed that DM need not have misled
either woman if his relationships with them were as casual and open as he would have the Court believe.

t361 Mr Laurenson also pointed to evidence that DM never felt a deep attachment to either woman. DM said in evidence
that he could not commit to either of them, for he had never quite grown up. But it is not in dispute that after 2003
he did not offer either woman an exclusive relationship. The definition contemplates a mutual acceptance of
exclusivity relative to other prospective painiers in general, but it also contemplates that a person may live in more
than one bilateral relationship contemporaneously. DM might live in a de facto relationship with MP while
cohabiting with Ms X.

t371 Next Mr Laurenson pointed to MP's sexual relationship with another man. it subsisted for as long as 12 months,
coinciding with a period when DM had returned to the home. But he and DM both regarded it as an affair and he
insisted it end as soon as he learned of it, making it plain that he expected fidelity of MP.

t381 Mr Laurenson next pointed to evidence that MP never displayed any interest in DM's hobby, power boating. it is
drawing too long a bow to suggest that couples must share one another's hobbies. Finally, Mr Laurenson noted that
MP ceased, probably in June 2003, to wear the engagement ring that DM had given her in 2000. That merely
signifies that she no longer thought of herself as engaged to be mained.

t391 These submissions fail to persuade me that the Family Court Judge was wrong to find the parties were in a de facto
relationship between August 2003 and March 2010. On the contrary, the relationship retained throughout important
indicia of a de facto relationship, notwithstanding DM's contemporaneous relationship with Ms X. The parties
cohabited for a substantial period, and MP lived in his house rent-free at other times. Their financial affairs were
substantially merged, they conducted themselves as a couple in public, they supported her son, and they maintained
a sexual relationship. in all of these ways they evidenced a substantial coinmiiment to one another. Not until2010
was that state of affairs ended.

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D V MP, 120.21 NZHC 503 (2012)
[2012] NZFLR 385,2012 WL 107,392

Decision
1401 The appeal is dismissed.

t411 MP is entitled to costs on a 2B basis. it counsel are unable to reach agreement they may file memoranda.

All Citations

[2012] NZHC 503, [2012] NZFLR 385,2012 un 1071392

Footnotes

I adopt the parties' nomenclature.

2
Property (Relationships) Act 1976, s 24(I)(c)
3
Section 20(I)(b)
4
Section 20(3)
5
Section 20(4).
6
Scragg v Scott [2006] NZFLR 107 at t261.
7
ection 29A

8
D V MCA (1986) 11 Earn LR 214

9
Nicol" Pear^'The Property (Relationships) amendment Act 2001: A Conceptual Change" (2009) 39 unWLR 813 at
822; and Justice and Electoral Select Committee Report on the Mammonial Property Bill and Supplementary Order
PaperN0 25 at 7.

The Justice and Electoral Select Committee Report at 7. The Committee also referred with apparent approval to
Thornpson v Director-General of Social Welfare t}99412 NZLR 369, which concerned a relationship in the nature of
mamage and identified a slightly different set of indicia.

A good example of the careful inquiry that the Family Court must undertake is provided by Scott v Fenguson (2005)
24 FanZ 377.

Section IM(b)

Section 20 Property (Relationships) Act 1984 (NSW).

Under the Family Law Act 1975, which has since been updated to include de facto relationships

Ruka v Department of Social Welfare [1997] INZLR154 (CA)

WESTLAW @ Thornson Reuters 9

 Relationship 10 o0erty: riot alwt^ys 50/50
S ARON CHA D A, SENIOR A SOCI T , TUR ER
he recent case of Bowden DBowdenl
has brought to light the citeum-
stances in which the court will
order an unequal division of relationship
property under section 13 of the Property
(Relationships) Act 1976. Section 13 pro.
vides the court with a discretion to order
an unequal division of relationship prop.
ertyif extraordinary circumstances exist
so as to make equal sharing repugnant
to justice.
where such extraordinary circum-
stances exist, the share of each spouseis
generally determined according to their
respective contributions to the relation.
ship. 2
An assessment under section 13 requires
a three-stage approach:
t Do extraordinary circumstances exist
and, if so, what are they?
2 Whydothose chewristances make equal
sharing repugnant to justice?
3 Given the parties contributions, how
should the property be divided?
The test under section 13 is a stringent
one which requires a high threshold to
be met. The types of factors the court win
give consideration coin making its assess.
meritcanbe broadly surunaiised into tiree
categories.
Significant disparit in
contributions
Agross disparity in contributionsis rigces-
sary in order to meet the threshold under
section 13.3 'Ihe court will, in making its
assessment, give consideration to the
expectations of each party during the
relationship and their conduct in meet
ing those umectations. A significantiy one'
sided effort by one spouse win ordinarily
need to be demonstrated.
The contributions in Bowden I, Bowden,
were such that the man brought almost
all the assets into the relationship and
paid the majority of outgoings. Writlst the
court held this robe a sumdent disparity in
contributions, the court's assessment was
o coupled with many other factors, in duding
the short duration of the relationship, the
couple's age and the fact that no assets
HE FAMILY ADVOCATE . VOLUME 191SSUE I
were acquired jointly.
in Venter u TrenberthS the High Court
took into account the vasdy greater than-
cial contributions made by the man. as
well as the fact that the parties did not
have any children, the relationship was of
relatively short duration and the woman
had received the benefit of residing rent
free.
The above case law demonstrates a
mere disparity in contributions will not
meet the threshold under section 13. A
truly gross disparity is required and. often
needs to be coupled with other factors,
in order to make a successful section 13
claim
The test under
section 13 is a
stringent one
which requires
a high threshold
to be met.
Short relationship/length of
the relationship
in general terms, the longer a relatiorrship
lasts. the more dimcult it will be to rely
upon financial contributions as constituting
extraordinary circumstances, .The reason
being, longer relationships are more likely
to involve situations where both parties
have made significant contributions of
varying types over the years'?
in Bowden u Bowden. the relationship
lasted forthee years and two months. The
c curtultirnateiy ordered an 80;20 division.
however, the duration of the relationship
was not the only factor considered by the
court The fact that the woman had PTO-
vided care to the man in the final months
O P KIN S
of his life and the fact that she had given
up a state tenancy were not sufficient to
counter the section 13 claim.
The case of Bowden can be compared to
Sydney usydn^19 where the court ordered a
60:40 division, even though the relationship
lasted for asimilar periodof^netoBowden.
This simply highlights the Fact that each
and every caseisdetermined and assessed
on its own specific facts.
Negative or minimal
contributions by one partner
Negative or minimal contributions by
one partner may be sumcient to meet the
Ihresliold under section 13. For example,
circumstances where onespouse has spent
aritheiriricome on alcoholandjorgarnbbng
may be sumciendy exaaordinary to render
equal sharing repugnant to justice under
section 13.10
in D U Din the wife had a mental juriess
and required residential care for the major
Ityoftheparties' 24-yearmarriage. The court
awarded a division of 80:20 in favour of
the husband on the basis that the wife
only contributed to 20% of the marriage
partnership,
Whilst the above categories provide
guidelines as to the kind of circum.
stances which must exist in order to
make a successful section 13 claim, given
the stringency of the test, often more
than one of these factors must be present.
The court does not view these factors
in isolation and makes its assessment
in light of all the circumstances which
exist at the time.
I 120.61 NZEIC 1201,12017j NZFLR 56
2 Property IRelationshipsj Act z976. section 13.
3 Into, a v Lyiord (1992) 10 TaraZ 143.
4 12016j NZHC 1201.1201?I NZFLR 56.
s 1201sjNZHC 5451/20i5jinFLR 571 at 1211
6 nation v Daiton 119791 I NZLR t13
7 Compare anger u Bilgerj, 979) 2 MPC 18.19
which involved a marriage of 29 years
8 12016j NZHC 3201; 12017j NZFLR 56 at 1501 to
1521 per Mander J
9 120121 NZFC 2685
10 Be Jan u Be unn 119nl I MPC 23 IsCj and
10hans. in ujoseph (1992) g FanZ 643,119931
NZFLR 248 IHigh Court)
11 0997/15 FRNZ302,11997jNZFLR 424