Divorce Café

Who keeps the family home and other burning questions.

February 12, 2024 Henderson Reeves Lawyers Season 1 Episode 9
Divorce Café
Who keeps the family home and other burning questions.
Show Notes Transcript

What happens to the family home when you separate?  Who has to move out?  Can it be sold out from under you?  What if you live in a trust owned house or a rental?  We discuss these and other burning questions that keep people up at night.  Advice on practical ways to resolve these issues, amicably or through the Courts. 
And  Shelley tells us what advice she would give herself if she could go back to the early days of her separation..."Chill Shelley, it will all be ok."   

Watch episode here 

Taina Henderson - Henderson Reeves (hendersonreeveslawyers.co.nz)

Shelley Funnell - Henderson Reeves (hendersonreeveslawyers.co.nz)

WELCOME to Divorce Café, the podcast where we demystify, detangle and (hopefully) detox the legal processes that follow a separation and help people getting in to and out of Relationships we talk to EXPERTS in the relationship property world and today we have expert Stuart Henderson from Henderson Reeves with us. 

On the home team: 

I’m Taina Henderson and I’m Shelley Funnell.

Today’s episode revolves around those burning questions that keep people up at night and we thought we might start with the most crucial one that seems to be for people separating is THE HOME, having somewhere to live and that continuity is really central to our security, that of our children, we are hugely invested in our home emotionally and financially in the family home.  But there is usually only one and that’s a problem when you become two households

First, I thought it would be useful to bring everybody up to speed we are going to look at what is a Family home, how does the Law define that; 

The law has always got some helpful stuff and we could read you a definition but essentially it’s the Residence that a couple is using and it’s the residence the couple was using when they separated

So the dwelling house that you live in at the end of the relationship is the residence is the family home.

And sometimes it is relevant to look at the detail of that and the section in the act says;  

It’s the dwelling house, the spouses or partners habitually or from time to time use as the only or principal family residence.

And so it doesn’t have to be owned jointly it can be owned in one of the partner’s names and I think we are going to cover other entities as well but it doesn’t matter if it’s in the name of one person only if they are living in it together in their relationship at the time they separate or die it’s the family home. 

It matters if it’s not owned by one of the parties.

 Although it still comes under the definition of Family home, but it’s not going to be divided under the Act. 

It could be a home that you are renting it could be a home that belongs to one family, it could be that there is no renting agreement in it but the law might decide well yes actually you are paying the mortgage, you are keeping it up to scratch, you do have a tenancy.  Which is important because If you get to the stage where the owner of the home maybe one party or one party’s parents says well “We want her out” then the Court has power with regard to the Tenancy which will be assumed and the Court can say well no to the owner the landlord the parents, you have an obligation to these two and we are going to vest that obligation in one person which of course gives them the right of occupation. 

So we have got some questions 

Yes we have got some questions what we find interesting hopefully everyone else will as well;

So when parties decide to separate who actually, who gets to stay in the house, the family home? 

The way it happens means there’s frequently is no decision made, someone gets furious and storms out, maybe when they want to go back in they find the doors have been locked and their clothes have been packed up and put at the front door, so who gets to stay in it can be decided by no decision making process except by someone’s actions. 

But if you are going to stay in it for as long as you can it becomes a question, do I move out? This relationship’s intolerable, we’re starting to bicker, our kids are being affected by it, should I move out? 

“Should” probably relates to the parent who is not the parent the kids naturally rely on for their day to day needs but sometimes that isn’t clear and you can end up with a Judge having to decide the two of you staying in the house carrying on bickering then the Judge will have to decide. In the generality the children are likely to stay the house and there for the logical thing, these things don’t happen by logic, always, sometimes, but the person who is most important for the children is likely to be the one who should be staying there and if a Judge gets to look at it at some stage that’s the rule they are going to be applying. 

And like we have talked about in previous podcasts the section that gets looked at when there isn’t agreement about which adult gets to stay in the house is that Section 27, 28 and 28A and they deal with Occupation Orders so if you can’t agree between you despite your best efforts you can go to Court and ask a Judge by making an application for an Occupation Order. And the thing about the kids come in doesn’t it when in 28A which says that a Judge in making a decision about who gets to live in the house, stay in the house, “…must have particular regard to the interests to the needs of any minor children of the relationship”. 

Yeap, it’s there in the Law, it might seem to be the human and proper thing to do but sometimes  people can’t quite see it that way but certainly a Judge must have regard to the needs of the children. 

“Particular regard”, that was something Mark Hennagan kept repeating didn’t he?  

And it’s a real dilemma, because if the mother recognised that the kids are being affected by it ‘he’ dog in the manger stays in the house because someone has told him he ought to stay it the house and she leaves, she’s really disadvantaged he can close things down on her and if she takes the kids away she’s got to set things up for them. 

And I’m doing the gender thing but that the way it usually strikes. 

Well we can swap it around the next time. 

So it’s, if someone were to ask me this is awful, kids are being affected should I move out? I’m likely to say:  “Well if at all possible stay there and let’s get him to move out”.

So what you are saying is it is important to know that If you do pack up and leave that needs to be a really well thought out decision because it’s harder to get back in and you might later regret that if the kids are with you. 

What a dilemma, you either uplift the kids if the other side won’t move out, uplift the kids and all of that drama or you leave without the kids and all that trauma, because the harm that is being done to them from the adult argument needs to be ended. 

And it is getting more complicated because I think what you’re talking about is a really I guess a more traditional set up where the wife maybe looks after  the kids most of the time and he works and I think in that case you probably it is logical for him to leave because she is there with the kids most of the time and that’s probably what a Judge would say at some point but what we are seeing more and more is it’s not that simple anymore that you will have 50/50 care or something close to it someone does the morning, someone does the afternoons and they are actually reliant on both parents to do it, and so that’s I think the scenario where it gets really difficult to decide.

And there are other arrangements, some people can make it work doing the nesting thing where the kids stay in the house and the parents move in and out there has to be another place to live for each of them and god it must be hard.

I reckon it must be hard to do, but yeah, what’s your impression of that? 

Move back into your exs bedroom virtually. 

Well the same bed 

Yea, sharing the bedroom, it takes an awful lot of nobility of spirit on behalf of the parents to set that up, and deal with all the inconveniences, because neither of them really has another home to live in and they put their lives on hold and they have to get on with the other party much more than would be the ordinary case, a very hard thing to do but what a wonderful thing to do for the kids. 

Probably only short term I would imagine, I don’t think you could do that for 5 years

And I guess it’s the same thing that before you agree to do that maybe talk to your lawyer about how it might go. 

And if you are at logger heads, FDR. 

Family Dispute Resolution. 

Provides you with a mediator whose job it is to try and resolve issues around children mainly, but that’s a big issue around children and it shouldn’t be confined just to children it should spill over into what children need and so going to someone who is a professional trained to try and work with the two of you and move you towards a solution, it’s there its available get on the phone ring, Fairway? 

And that is Mark Hennagan again was saying in his episode it’s good for the kids when parents can communicate and work together to resolve something and reduce that conflict.

Kids learn a marvellous lesson, even when you don’t love each other you still dedicate yourselves and set aside your own lives for their benefit because if you don’t, kids think – oh, they don’t think I’m worthwhile, I must be a miserable creature…awful problems. 

Alright, so next question

Can my ex-partner get an order to sell the house?

Ohh we didn’t do question two, 

You were meant to do question two, 

Yea I know 

Do you want to do that? 

Ladies, ladies, ladies 

Is FDR available for people who aren’t in a relationship? 

It’s a Family Dispute Resolution, oh I see you two, you two. 

So um our relationship is frightenly close to a de-facto one I would say. 

Who has to pay the mortgage so once you’ve worked out and somebody’s in the home who has to pay the mortgage and the rates? 

Its probably a mortgage that you are both liable for so legally you are both liable.

To the bank. 

To the bank and if you both refuse to pay it the bank will take steps to sell you up and it’s something that really has to be negotiated but if nothing’s negotiated the Courts approach it on the basis that whoever stays in the home has responsibility for the outgoings. 

It’s not quite as clear cut is it? 

Nope.

No because the Court is balancing up the disadvantage to the person who is moving out, they have got accommodation costs, they are also leaving their capital in, so there is that interest component, you are entitled to interest on your capital, but the practically speaking the way they often do it right is it seems fair. 

And it’s a rule of thumb, people, I mean we are looking at urgent questions or important questions and people do need to know the answers and if I ignore the little detailed ifs and buts the general answer is absolutely the person who stays in the home pays the outgoings. 

And, if you can’t afford it, so say you have been the primary caregiver and you can’t afford to cover all those, that’s where things like spousal maintenance can chip in so yes you can take responsibility for those it doesn’t mean that your ex doesn’t have to chip in towards that cost.

No he is legally liable. 

He or she, the other owner.

The one who goes is legally liable and it’s their responsibility to make sure that the one who is there, you’ve got to keep an eye on it to make sure the mortgage payments are being made because the mail will go to the house and if your elsewhere and I’m not being gender inappropriate the m.a.i.l will go to that house you may not find that default notice…

Nobody knows what mail is anymore. 

Don’t they? 

No, 

Ok, 

But yeah

I’m sorry about that 

But I take the point 

But that person does have a responsibility, that person who is out of the home has a responsibility to make sure that the children are able to be housed in that home which if the bank comes along brings it to a pretty horrible end, so I didn’t want to leave it with the person who’s in the house has responsibility, they do, but the other person has responsibility too. 

And they have that spousal maintenance. 

And sometimes putting the mortgage on an “interest only” or some kind of short term arrangement. 

There’s things you can do. 

Exactly 

And banks are obliged to consider what they can do if there has been a sudden event in your life, all banks are required to do that, so you go to them and ask what can you do for me. 

Yep, talk to your bank 

Cool, question three. 

Oh ok this is my turn, this is my one…. 

Can my ex get an order to sell the house against my wishes? So this must be assuming the house is in whose name? Both names? His names? 

It’s the family home. 

Both names. 

Both names, so they both own It so can my ex-partner whether that is a woman or a man make me sell the house? 

It’s a common threat isn’t it, “Well if you don’t well I’m going to sell the house!” 

Worse if it’s in one person’s name can they sell it without having to fight the battle over should it be sold, and the answer to that is… 

Yes.

If it’s the family home, whoever’s name is on the title of the two of them its actually owned by each of them in equal shares. 

But you would have to go to Court wouldn’t you? 

Once you’ve been in a relationship for 3 years, 

You’d have to go to Court to stop it. 

Yeah but that is the law so it gives you the right for example to put a caveat notice of claim on it even though your name’s not on it. 

That’s a pre-emptive thing right? 

So, I just disrupted your answer.

Question? You disrupted my question. 

Can you get an order to sell? 

Yeah can you get an order, let’s say it’s in both names, like your saying if it’s in one name you can also get an order and you do have the right to do that, but can my ex-partner in both of our names say OK time to sell the house? 

Ultimately yes, you can ask the Court for an Order for sale, the court won’t make, well it will take the Court quite a time to get through the process of hearing from both sides.

Which is how long? What are we saying 6 months, 1 year, 2 years? 

Well the Court is required to consider all of the circumstances that are relevant to the application so that’s changed from what the Law used to say so presumably it’s a full hearing. 

And in desperate circumstances the Court can be persuaded to be moved really quickly like if it’s on the brink of a mortgagee sale and that’s going to be ruinous and someone is being a dog in the manger and not getting out, the Court will intervene in those circumstances and make an Order but the Court has to have regard to the need of the children generally so if you are the vulnerable one with the children you need to respond to any Court Applications that come your way because the answer to your question was the Court will give each party time to make their statements to the Court in Sworn Affidavits usually as to should it be sold “yes its desperate” should it be sold “no I need it for the kids and she’s got this that and the other place” the other party has got this that and the other place. 

And the Act has got a specific provision that says the Court can delay a division of assets where that’s I think it is where it is in the best interest of the children. 

In the interest of the children, and the fact that they can delay means also that they hasten it and so the answer to your question is yes the Court can. 

But also yes you can stop them from doing so because you have described one scenario with the dog in the manager but the other scenario is the non-working partner looking after the kids, no income and the working partner that doesn’t live there says I’m not paying the mortgage and I’m going to make you sell.  There are avenues for that person and that might be Spousal maintenance as well as an order to delay selling the house. 

So the Court can order it to be sold, but the other party has a right to be heard and argue and convince the Court that It shouldn’t be. 

It would have to be something pretty important outweighing like it’s not enough to say I want my capital out now, we’ve talked about some of those cases  it has to be something pretty important to displace the kids but I mean the Court, the job of the Judge is to consider everything and try work out what’s fair.

You’ve got a right to be heard

Taking account of the children. 

What if our family home is owned by a company or a trust? Does that bring any special provision into play? 

It means that it’s not owned by the two of you and the Court has power only if it can decide that legally the right of each of the parties to be there is in the nature of a tenancy, it might not have been a signed tenancy but if the Court were to decide yes there is a residential tenancy here - it breaks a lot of the rules that is required for a residential tenancies, but that’s what it is and I’m going to vest in it, vest in the partner who has got the children say - but all they are doing is vesting  the tenancy so the tenancy has to come to an end at some stage. 20.07

I think the answer I would like to stay with people is that the Court is there to do Justice in this situation and the Court is a process where you are expected to front  and have either your Lawyer or yourself to present your case and judges are there to make sensible decisions. 

23.50

And they have got those general Sections like Section 33 Power to make you know and Section 25 the power to vest assets in people so they do have powers to do justice under the circumstances. 

It’s just getting there, finding the money to do it.  Are these quicker?  Do you think these family home kind of proceedings are quicker?

You can get things going really quickly, I had a situation once where he was wanting to force her to move out she was in the home with the kids and he was wanting to force her to move out so he stopped paying – oh, the mortgage came up for renewal and they had to refinance it and he refused to refinance and the time approached, the time approached and he still wouldn’t do it and in a short amount of time, I think it took me 7 days to get the Court to hold a hearing and for the Judge to say ‘I will vest the property in [my client] for the purposes of refinancing it and holding it until there is a division of property between you’, so Courts can move quickly.

So is that then the title is updated and she actually owns the house herself and she signs all the loan documents 

Yeap, the vesting order can be registered, my client was then able to sign the documents, she had all the documents lined up but it needed two of them and once it was vested in her it only needed her – Bingo. 

That’s a boss move – I love that. 

Cool, your question. 

Is it? 

How does one party get the right to buy out the the other one? Can you get the right to buy out the other one? 

I thought that might be one you as a commercial Lawyer might have some thoughts about but the short answer is…

The Judge will look at the situation and decide whether actually the thing has got to be sold, there is only one person who has got the capital to buy it out and the other person can’t hold this up any longer, it’s been two years or whatever and the Court will move it along if it has to be moved along.  It gets problematic if there’s two people saying  I can buy it, I can buy it.  The answer to that is to say alright we will put it on the open market by Auction and you can both bid on it. 

And back from that, so that’s the Court option is if you are deadlocked and you can’t agree but the first way you will be able to buy the other party out is to agree, sit down and negotiate it and maybe it comes down to what’s the price - you save the commission when you buy the other person out although the person who gets it still has to pay one in the end. 

Or even taking it a few steps back from that and put it in your Contracting out Agreement. Who is going to have the right to buy you out on separation so if you do it at the beginning you can set up a mechanism in that agreement, can’t you?  

And that is one advantage of a Contracting out Agreement, you’re right, because if you both own the property, you have to agree if one person is to - but the other person out and sometimes the person will say, well if I can’t have it, neither of us can have it and will throw a grenade in - but yeah, you are right if it’s in the Contracting Out agreement. 

Good one. 

Do I need a formal agreement to divide up the house, which is more to settle RP?

Well, if you can negotiate it and get agreement and transfer the house and money change hands and so forth, the theoretical answer to your question is yes but the problem with that is that (and this was your point before that) if you have got to go to the bank and the bank is going to be asked to lend money to one person, the bank is going to want to know that there is not going to be any Relationship Property arguments to come back and screw things up.  And so the bank will say yes, you have got to have that formal Deed, Deed of Agreement settling the division of property and as a matter of practicality the situation involves furniture, it probably involves vehicles, it involves  KiwiSaver, it involves a whole lot of things and there is danger in DIY in that you think you have sorted it all, and you think you have done it according to the law, but the point of the formal agreement is that each party has to go off and see a lawyer and at that point if actually someone has bullied someone into a ridiculous situation, the lawyer is going to say: “Well no, I am not going to let you sign that - although legally you have the right to.  It’s not binding unless I certify that I have legally advised you, so I’m not going to certify that because you’re entering into such a stupid agreement I don’t think you understand it.” 

And that can happen with the best will in the world, so you can have people who are co-operating who are trying to do the right thing but they don’t realise what the law says. 

Amicable. I think Kiwisaver is such a huge one with that because there is so many people we met and they go oh but the Kiwisaver is mine and someone might have $200,000.00 and someone might have nothing and they don’t realise that actually that’s to be divided 50/50 in a division even though the Kiwisaver is in your name and you have earned it, it is actually Relationship Property. 

In reality you do need that formal agreement and it does need to take into account the legal elements. As a party trying to do it yourself to save legal costs, you may not know it all and therefore end up with an agreement that just becomes messy, because a year or so down the track someone finds that it’s not working for them, realises that it’s not been formally signed off and says “I want to reopen it and get my full half share.”

And that’s the other side of a formal agreement, is it’s binding. 

And hopefully you have got a creative lawyer, the other thing is that back to the Kiwisaver point is that you can actually access your Kiwisaver.

Through an agreement. 

If you want and it may enable you to buy out the house so you can actually withdraw Kiwisaver for an RP settlement, so I think that can be a really useful tool that your lawyer can help you with right. You need the lawyer to withdraw the Kiwisaver 

Yes the lawyer has got to , the Kiwisaver people have got to be shown that it fits the rules of the Kiwisaver Scheme, and the same applies with some superannuation schemes. I had a situation recently with a police person and a lot of money is locked up in the Police Superannuations but you can actually get that out too if you met the terms of the deal. 

Absolutely. 

It’s an odd number it must be your question 

Is it always 50:50?

The law says equal sharing. 1976 they passed a Law that started off the principal that dealt with centuries of unfairness and said the family home especially is to be divided 50/50 and there was within about 3 years - there is one exception so the answer is no it doesn’t have to be, the exception is enshrined in Section 13 of the act it is that…

There are two exceptions.

Two exceptions – Taina will tell us what the other one is. But if there are ‘extraordinary circumstances which render equal sharing repugnant to justice’, and those are the fancy words that Parliament came up with then there can be unequal sharing of the family home and within about 3 years  of the Law being passed someone came along and said “I provided the house we have lived for 5 years I think it was in this magnificent mansion “she put in nothing” (I’m being gender appropriate to the case) and he said “that’s extraordinary, there should not be equal sharing” and the Court of Appeal realistically the highest Court in the land at that stage said “No it is not extraordinary circumstances that one party came to the marriage with all the capital and the other party comes without” and it’s not repugnant to justice because that’s the way the law is saying it ought to be and people still try to.  I got a recent case where the client is outraged, exactly that situation he has the right to take half of her house, she paid for it all.

And what do you need to do if you don’t want your partner to have half of your house?

Well you’re too late if you haven’t done that. 

By that stage. 

By the time you separate you’re too late. 

Contracting Out (or a prenup). 

The other exception to equal sharing, and there could well be others, but the only one that sprang to mind then so you’ve got Section 13 extraordinary circumstances, Section 15 economic disparity which is the one that says you can have an unequal share of Relationship Property, which is the one that says you can have and unequal share of Relationship Property if one party has due to the roles and division of relationship, one party comes out of it with less earning capacity and living standards.

So what that means in normal English is that someone has worked very very hard full time in their career and the other person has generally stayed home and looked after the kids and put their career on hold, that is the typical scenario, right, of the Section 15. 

Of Section 15 yes, so the person who was the career person comes out with a greater personal capital. They have got an asset effectively, that they can go on and earn money - not always - and it means you’ve got to continue to work in whatever that job is and the other person has got a lesser asset so the law balances, rebalances that by giving, potentially, not always but an unequal share to the person… 

And that can be a very bitter pill to swallow in my personal situation and I think this is like a common attitude... “I’ve worked really hard in my career [and that is true] I have worked and I have made all this money and I have supported you during the relationship to live in my fancy house…” or whatever and then they have actually got to give the person that has stayed home and benefited from that more of the Relationship Property and I think there is an element of thinking: “I have supported you for a long them so why the heck do I have to give you more now?” 

But there is a lot of fairness and common sense in Section 15 because it doesn’t work unless the person who has stayed home has actually not got ahead in a career and the payment, the adjustment has to be targeted at what is necessary to right the balance of the earning ability.

The economic disparity.

Yep, and allow the mother and its usually the mother, allow the mother to then restart her nursing training or whatever it is and get back to that. 

Or law, 

Or law, I’m sorry, so it’s not just a big chunk of money.  It’s money that’s calculated according to the difference between the two earning capacities or the economic disparity and a payment to enable the other person to catch up. 

And there is a lot of, it’s not just a cheque that gets written, there is a lot of - it’s well argued and you have to show why that is fair, it has to be just at the end of the day and so it might feel very unfair, but… 

All of these things are endeavours to provide fair and just outcomes and you asked if it always has to be equal and you referred to property generally and not just the house and answered it unfairly by limiting it to the house, but it doesn’t have to be equal, but the bottom line is that it should be equal and that a Court will interfere to make it “equal”. 

Unless there are reasons…

Unless there are adjustments and oddities like Section 15 there, but it’s being fair.  Overseas people who I have known who have fought with the regimes overseas have said that in New Zealand you’ve got such a good set of rules, they are clear, they are 50/50. In other Jurisdictions there’s no certainty as to how it’s to be divided, so when I say to you ‘yes’ or ‘no’ or whatever it was that I said, that’s a social contract that’s been set up since 1976. 

That’s what I was thinking, are we quite, we are pretty fair in New Zealand. We got to vote pretty early on this.  1976 is probably quite early to come up with the principal of equal sharing

How old were you? Don’t answer. 

I had been just born. 

I can tell you that before then it was really really hard to get a fair division of property. 

And it was only 2002 that the de facto…that it was extended to the de facto relationship wasn’t it so we are not quite that progressive. 

It’s a developing, developing the things that need to be done so that more often than not there is fairness 

If I own a property now, and my partner moves in (hypothetically but it definitely happened to me) how can I stop them taking half of it if we were to separate or one of us died?

So obviously the basics are if the two of you are living in a home and your relationship qualifies, so if its 3 years or it might be earlier if there are children in the relationship, certain circumstances then the family home becomes relationship property which is divisible 50/50 on separation. 

If you have got the 3 years under your belt…

Yeah, once you have been together in a de facto relationship, or are married or a Civil Union relationship. 

So if you don’t want it? 

If you don’t want that, then you sign a prenup or a contracting out agreement. 

The first thing I would say in response to that is ‘what were you thinking of when you started a relationship with someone but you thought actually I don’t want you to have any of my stuff. We are going to have this relationship and we are going to share it and it’s going to be happy and we are going to have kids and things are going to go really well and we are going to do lots together but hands off my stuff, that’s not on. 

No, well that is a different scenario from most people because that is people getting together early, but the more common scenario, I can’t tell you everything because I am in a relationship and I want to stay in this relationship but you both have got sets of children and that’s the primary reason I think people keep it separate.  Because you have built up assets over their life time. You’ve built up assets over your life time and you want it to go to your children but I definitely take your point that there is a real push to say this is mine, this is yours but then if they die you are destitute because they haven’t provided for you in any way you’ve got no income or whatever they can’t pay the mortgage. 

There are also you know people are moving in together, De Facto Relationship, Marriage, Civil Union. Marriage and Civil Union, you know that is something serious.  You know that it is going to have implications, legal implications so you are taking on a different level of obligations to each other I think, that some relationships which can develop from a flatmate relationship into a dating relationship into a more committed at what point and the law will answer this one. We are not  going to do it today but at what point do you intend to create property relations you know between each other because sometimes after 3 years you know different relationships…it’s too soon.

And there are moves afoot right, they did an investigation into it where they have said actually what the public thinks and what we would recommend… 

It’s The Law Commission right? 

Yes the Law Commission, is that actually when you move into a house you assess the value at the date of the beginning of a Relationship you get to keep it and you just share in the increase of value while you are together in a relationship and I know that they said that 80% of the public or something thought that was fair in these days.

Well I am so sorry about the passing of till death do us part, with all my worldly goods I thee endow, I mean what are you going into these relationships for? 

Well I can’t say that on a podcast. 

And we don’t want to know it – what Shelley is going into a relationship for. 

I will say Trusts that when Trusts can be problematic they are not a good answer to a lot of the questions that people think they are going to achieve by forming a Trust.

So, we were talking about Shelley’s relationship and why she gets into them, she has got four lovely children so I think it was a good decision by her, but I have got a question for Shelley 

So you went through a separation yourself and I was wondering… 

If you could go back and tell yourself or talk to yourself back then, what advice would you give yourself? 

Obviously it was a really long relationship, it was like 25 years, so a pretty serious…

“Obviously” because you look really old? 

(Laughter) 

Ok, so what would I say, I love what Tony Lendrum said in that mediation, which is imagine you’re your teenage child, I have a 13 year old daughter, imagine that your thirteen year old daughter  is reading everything that you write or say because I think that’s a real thing to affect what you are going to say.  Because you say some pretty…so basically its leave the “petty” behind, don’t point score, you are never going to win, you obviously have problems with communication or whatever which is why I have separated in the first place I would say don’t try to score points. 

And affidavit is not therapy, and neither is a lawyer’s letter.

And just little things like I would do that parenting what’s it called, Parenting Through Separation I would do that really early in the relationship.  I would set up a joint calendar that is really specific about times and days and where you are going to be because a lot of the arguments that we had and I assume this is the same for a lot of other people about the kids, what they are eating, what stuff they have got with them, what time you’re dropping them off and you said you would pick them up.  So I think that’s something that can be really really clear and also minimise the number of drop offs and pick-ups because that is when the shit hits the fan, so to speak, that’s always when you have the conflict.

How do you minimise that? 

So I guess just setting up your custody, so a good way to do it is always - so instead of dropping them off, one person drops them to school and one person picks them up so then you are not getting an interaction that is not going to create some conflict. So that is a real clever way I think of doing it and then stuff is separate. I think the other thing is that Whats app group. I would of rather set that up at the beginning, that said: “this group, this ‘chat’, sorry, is  just for the kids it’s just for the admin and we can talk about all the other emotional stuff in emails so it was like I am not going to respond to this unless this is about the kids”, then you can do that sort of admin stuff all the time 

So that sort of communication doesn’t stop just because you fall out on another point.

And then the last thing is maybe I just say ‘Chill Shelley it will be OK  you will get through it, you will get through it, its shit.’ 

It’s a long game. 

Exactly, but you will be fine, and actually bad things happen and then you learn lots from them 

and it’s not as bad as you think it’s going to be

This is your life Shelley Funnell.

Yeah exactly 

I had an interesting situation with a mature couple both had other kids, both of them had, I think most of the kids were pretty old and they were developing their, they were entering into a relationship, and they wanted a Contracting Out Agreement.  And one of the things I said to her because everything was kept separate she had a house, he had a property they were going to live in, everything was kept separate which floored me a bit and I said ‘What is there in it for you? Where is the “us” with you doing gardening on his property but you don’t have an interest in it, where is going to be your, are you noble enough to pour your effort into the property you are living with him and to know it’s being kept for his kids who you may decide you don’t get on with. And it was that where is the “us” in the relationship if you split everything up, so the prenup which these days often splits everything. It just worries me as an old guy. 

And what is lost in your relationship when you are not building something together, or what could your relationship gain if you had something to build together.  More and more those Contracting out Agreements are being future proofed in a way and its clear from the law that if there is some property to divide, your agreement is going to be more secure and stable at the end so people are transferring a percentage of an asset out of a Trust into joint names so that even if you brought a house into the Trust you then own half of it as a couple and half of it stays in the Trust so there is lots of ways to do it. 

Yes, there is and you can provide for them in your will right? 

Yes and then change your will afterwards.

And then lay it all out on the table. What seems fair. 

Yes thoughtful and considered arrangements.

And it takes time to trust again. I don’t think 3 years is enough in a relationship where you are prepared to share things, but setting up a Contracting out Agreement that has the ability to change over time. 

Yes, if your lawyer is suggesting that, listen to it I guess, I would say that, I would say that! Just think about how you might feel in 15 years if you are still in a relationship, not to mention the legal implications of an agreement that stops being… that becomes seriously unjust over time. 

Again, a little old war story here but what I like to say is, well not a war story but what I like to say is: OK you want to separate but go to a counsellor, go to – it’s FDR these days - but go to a counsellor and talk it through before you actually separate.  You don’t want to do it, no you hate the other person, it’s the end, I’m not going to do that.  And my suggestion is do it anyway, and you’ll either end up satisfied that separating is the right thing and you will have considered and then will be a certain amount of respectfulness because it is being controlled by a good counsellor, but you will either decide that’s the right thing to do or you will think “ooh I’ll give it another go I didn’t realise the other person felt that way and we can cobble together a better relationship”.  What are you going to think like in a year or 2 years when the life you planned when you wanted to split has turned out to be shit?  None of the things that you have hoped for have realised and you look back and think I should’ve stayed with it.

Yeah I think there is something in that 

Him, it 

Them 

Them, I left no stone unturned, like I did everything I could at the time and there was no resurrecting it and there was no moving forward.  And when it is hard on kids or when it is hard on you, you can think I didn’t make that decision lightly I did everything I could. 

I tried.

Awesome – I think we have used up on our time from our Burning Issues session so this has been Divorce Café.  

Thank you Stuart for coming down from Whangarei to talk to us today 

Thank you for having me 

If you enjoyed this episode, you can check out our other Episodes, there are also articles alongside each episode which can also be really useful content. If you have a burning issue you can email us at divorcecafe@hendersonreeves.co.nz.  So you can forget the ‘at’, just divorcecafe@hendersonreeves.co.nz and yeah we can see weather that could be a future episode. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

That is distinguished from a homestead:


The law classifies the family home…

 

The thing I have always found funny about this section is that the FH doesn’t have to be owned by the parties. 

This is a curious section – I understood that if a property was no longer being used as the family home at the end of the relationship it could lose that classification.

 



Some other sections that have application to today’s discussion:


 



 [what does Nicola Peart’s book say about a family home that is owned by a company or a trust?]