Jeremy Sutton: The Ex-Files – Can we still divide our property from separate countries?

OPINION:

Q: My partner and I separated about 18 months ago after 15 years together. During our relationship we lived in both New Zealand and Australia. We have homes in both countries. I am living in our home in New Zealand which is in my sole name. He is living in the Australian property which is in our joint names. He is trying to return to New Zealand but is unable to get a spot in MIQ. Our lawyers have sent a lot of emails back and forth but with little progress. I want to resolve this quickly. Do I need to wait until he returns to New Zealand or is there something we can do before that to get a resolution?

One of the issues we are struggling to agree on is what to do with investments in a private company that may be listed on the NZX next year. He wants to keep the shares for our children. I am not sure if we can value the company because it is not yet listed on the stock exchange. Should we wait?

Answer: As you have been together for more than three years, your relationship property will be divided according to the rules of the Relationship (Property) Act. The normal position is that the family home, the family chattels and other items are to be divided on a 50/50 basis.

Relationship property vs trust property

After a separation, the first step in the process is usually to determine what is relationship property and what is trust property. Trust property is not governed by the same rules as relationship property so it can complicate matters.

The process of determining what property you and your partner own or have in a trust may take some time. It will take even longer if your partner is not forthcoming about what property they own or have an interest in. They may also disagree about the value of that property.

Any interests in property or in a trust will need to be disclosed to the other party. The emails between your lawyers so far will likely have been focused on this discovery and disclosure process.

Resolution

A common method of resolution in relationship property disputes is private mediation. In private mediation, an independent mediator facilitates a discussion and negotiation between both of you and your lawyers. The mediation usually takes at least half a day to reach a successful outcome. Parties typically share the cost of mediation.

As you and your partner are in different countries you need to conduct the mediation using a video conferencing app such as Zoom or Microsoft Teams. Remote mediations have become increasingly common with Covid-19 lockdowns and travel restrictions.

If you resolve some or all of the issues at mediation, a written agreement would then be drafted and signed. This agreement could include an additional clause to allow the agreement to be signed and certified over a video call.

Post separation expenses

Consider whether any post-separation expenses or adjustments need to be recognised. This might include a claim for occupational rent because your husband has been living in the property that you jointly own without contributing to its upkeep.

Next steps

I suggest you discuss with your lawyer the possibility of resolving your matter by private mediation. Ask your lawyer what the advantages and disadvantages of mediation are for your individual circumstance.

If you are frustrated that your partner does not appear to be motivated to progress towards a resolution, you could file proceedings in the Family Court. However, the average time to resolution from the issue of proceedings is about 13 months.

Shares

It is still possible to determine the value of your shares even though they are not listed on the NZ stock exchange. Find out the last price the shares were traded on a private basis. The last traded price will provide a reference point if it was relatively recent. If there is no market for the shares you could resort to valuation, but that often can result in a wide range of outcomes, is reliant on the availability of recent information and incurs the cost of an independent valuer.

You could agree to hold on to the shares together until they are listed on the NZX. I am not generally in favour of couples continuing to own property jointly after separation. It is preferable to have a clean break in relation to all their assets and debts. However, if there was an agreed date at which the assets were going to be sold or transferred then that option could be sensible.

You need to have a property-sharing agreement that outlines what would happen if one party wants to sell, either to the other party or privately. Consider how the valuation process would work if one party was to sell their interest in the shares to the other party and what valuation method would be used.

Summary

It has become increasingly common for relationship property matters to be resolved when the other party is in another country or city. Usually, the most efficient way to resolve disputes is through mediation. This can be done remotely over video conferencing such as Zoom.

– Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.

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