Vk v Fk Fc Por
| Jurisdiction | New Zealand |
| Judge | V H Ullrich |
| Judgment Date | 21 February 2011 |
| Court | Family Court |
| Docket Number | FAM-2009-091-717 |
| Date | 21 February 2011 |
FAM-2009-091-717
IN THE FAMILY COURT AT PORIRUA
Application for a division of relationship property under the Property (Relationships) Act 1976 — parties married in 1990 and finally separated in about 2005 — wife alleged there were many periods of separation during the course of the marriage and it should therefore be treated as being of short duration — alternatively claimed extraordinary circumstances meant the property should not be divided equally — husband asserted there was no reason not to divide the property equally — whether an equal division of property would be unjust.
F A Williams for applicant
R Faiga for respondent
JUDGMENT OF JUDGE V H Ullrich
Relationship Property — short duration s 14; extraordinary circumstances s 13; two houses s 16.
The parties married in October 1990. The husband says they separated in 2006 and he issued proceedings under the Relationship (Property) Act in September 2009.
The wife says they finally separated in about 2005 but she alleges there were many periods of separation between 1990 and 2005. She therefore argues that the marriage should be treated as one of short duration, or, in the alternative, that the circumstances of the marriage were extraordinary to the extent that the property should not be divided equally.
The husband maintains that the marriage continued until their final separation in 2006 when the wife returned her ring to him. He asserts that there is no reason to divide the property other than equally.
There is also the possibility of an argument under's 16 Property (Relationship) Act as each party held an interest in a home at the time of the marriage.
There is a direct conflict in the evidence as to the periods of time the parties were living together and the periods of time they spent apart.
At the time of the marriage, the wife was a widow and still had dependent children living with her. The husband was divorced and his dependent children remained living with his former wife.
When the parties married in October 1990, the husband moved into the house which the wife had owned with her deceased first husband. Her children lived in the house with her and her new husband.
She alleged that he made no contribution to the outgoings on the home and it was understood that the house was to remain for the benefit of her and her children from her first marriage. She stated that there had been a discussion in 2001 with her husband when he had advised her that he was putting the relationship property money from the settlement with his ex-wife back into his former family home for his children. She told him that she was going to make a will leaving her house to her children.
The wife says the first separation occurred in 1992 after there were allegations of sexual abuse by the husband against two of her daughters. The Child Youth and Family Service became involved and a family group conference was called. It seems that the allegations were not taken further.
She admitted that she had been fruit picking at weekends at Otaki between 1992 and 1994 with two of her children and the husband. She said they both collected their money for this work separately.
She says that she gave her husband another chance and he came back in 1994. She travelled on her own to Samoa in 1995. They travelled to Samoa together for his sister's funeral in 1995. Later that year they separated again but reconciled another time in 1996 which she alleged only lasted for three months before he left again.
They were separated again from 1996 to 1998 and she informed WINZ that they had again separated. She produced a letter dated 22 August 1996 written by a solicitor to a Mr Brooking of the New Zealand Income Support Service Investigation Unit. That letter indicated that the Unit was making inquiries concerning the eligibility of the wife to receive a benefit since her separation from her husband. The solicitor was asked by the wife to write to Mr Brooking to request that they not enter her property without her prior consent on each occasion. The wife's evidence is that she asked the husband for a letter from his lawyer confirming that they were separated.
The husband produced a batch of supermarket receipts for the period October 1996 through to November 1996 through to April 1997. The wife said these were her receipts that he had put in a suitcase that he kept under her bed. He was not always sleeping in the bed, but he would just come and use her.
She acknowledged that he was with her for some time between 1998 and 2000. She acknowledged that they travelled together to Hawaii in June 2001 but two weeks after they returned to New Zealand, he disappeared again. She had paid for him to go with her to Hawaii. She had obtained a loan from ANZ to pay for the trip. After he returned, he was not sleeping with her but he would come to her house between 4 — 5am to prepare for work and would make love to her in the morning before going to work.
He did not tell her about his back operation in 2004. She alleged at that time he left to live with his ex-wife and children at their former family home. During 2001 and 2005 he also lived with his children in Auckland. She alleged that when he left her, he never explained where he was going and it was only when he had returned that he would beg her to take him back.
She produced a letter from WINZ which stated that she had been in receipt of a domestic purposes benefit from December 2000 until May 2004 when the Women Alone benefit was cancelled as she had started fulltime paid employment. She asserts that they remained separated throughout that period.
In June 2002 the wife signed a will with the Public Trust leaving her estate equally among her 7 children with a gift over to her grandchildren. When she made that will, the lawyer explained to her about the Family Protection Act and recorded in a statement kept with the will that she did not provide for her husband as he had left 6 months prior to her signing the will and she had not heard from him.
He returned for a very brief period in 2003 and she says that was the last time he lived at her home. When he left in 2003, he took the Hyundai vehicle and traded it in for a Ford car. She had paid a deposit of $2,500 for the Hyundai vehicle and contributed weekly payments. He did not inform her when he sold the Hyundai and bought the Ford.
In 2004 the husband's ex-wife dropped some of the husband's stuff at her home including two guitars, two large amplifiers, one small amplifier, a video camera, blankets and a bag of clothes. He turned up the next day, removed his possessions and left. She submitted that indicated he was frequently living with his ex-wife.
During 2005 he would come in and out of the house but “disappeared for good” in the middle of 2005.
She alleged therefore they had not been in a relationship lasting close to three years as they had had so many separations and reconciliations.
Until he filed his evidence in support of his relationship property claim, she knew nothing of a back operation he had in 2004.
She alleged he had not paid a cent towards the outgoings on the home. The wife attached copies of a BNZ bank statement in her name from 1974 and a BNZ bank statement from 1995 in the name of her and her first husband which she stated showed that all the outgoings and mortgage were coming from her bank accounts and that the husband had not contributed any moneys to the home.
She denied that he contributed to the household bills or gave her money for those bills. She denied that he contributed any money towards her parents' headstone.
When it was put to her that her husband had produced receipts for payments he had made for groceries and electricity, she said that during 1992 and 1994 that these bills were paid with her money and that he moved in and out and because he had a car to travel. She said he was only at her house for a couple of months a year. It was put to her that he must have been living there if she was asking him to pay bills for her but she denied he was living with her and that he was going away and coming back. She again referred to him coming in and out, in and out.
She alleged that there were periods of time when the husband was in employment and receiving a benefit and that this is evidence of his dishonest nature.
The husband dug up and excavated under her house and devalued the property. She produced an estimate that it would cost $2,006 to remedy. She acknowledged that her son assisted him. She denied that the furniture the husband made in this workshop was sold for the purpose of contributing to the family and said he used the money for his own purposes.
She acknowledged that he gave her $3,000 from his redundancy payment as a gift. She bought a sewing machine, clothes and shoes with this money.
With her last affidavit she attached a number of documents which she said supported her view of the history of the marriage. She annexed a letter dated 2 May 1994 from Income Support addressed to her husband at 8 W Street. That referred to his application for an accommodation supplement and indicated the new figure for his income support. The wife said this confirms that he was not living with her at that time. She did not know if he even lived at this address but she knew he used it as his postal address between 1994 and 1996.
In cross-examination it was put to the wife that the address of 8 W Street at which the husband had received mail was used because he was being...
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