Vk v Fk Fc Por

JurisdictionNew Zealand
CourtFamily Court
JudgeV H Ullrich
Judgment Date21 February 2011
Date21 February 2011
Docket NumberFAM-2009-091-717




F A Williams for applicant

R Faiga for respondent

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.

At issue was whether an equal division of property would be unjust.

Held: The evidence of the parties was in conflict. On the balance of probabilities Mr K did not live at the home consistently from 1990 to 2006 as he alleged, but was living there for at least a total of five years. Despite not cohabiting for the whole time, the parties did continue to associate and engage in a sexual relationship. Mr K retained the family car for his use and Mrs K made all the mortgage payments from her income.

The leading case on whether a marriage was of short duration was Martin v Martin and the onus was on Mrs K to prove the facts which warranted a determination of short duration. The criteria for a normal to successful marriage have changed over time, and it is not unusual to find that parties in a functioning marriage may spend periods living apart. Section 52A PRA envisages, in setting out priority of claims, that a marriage and a de facto relationship can co-exist. Sexual fidelity cannot be a requirement of a functioning marriage, but it is an indication of the quality of commitment to the relationship. The findings supported a functioning marriage, including: an ongoing sexual relationship; mutual residence; sharing of household tasks and childcare; and a degree of financial inter-dependence for at least five years. The marriage could not be classified as one of short duration.

Section 16 PRA (Adjustment when each spouse or [partner] owned home at date relationship began) did not apply. While there were two homes at the start of the relationship, the husband only held an undivided half shared in his home (which he later assigned to his children) and it was occupied by his first wife and dependent children. While Martin v Martin suggested that part ownership might be sufficient for the purposes of s16, the house must be capable of becoming a family home. By assigning his share in his first home Mr K had relieved himself of the burden of financially supporting his children and could devote his income to his wife and step children. His first home was not capable of becoming a family home with the terms of s16 PRA.

To set aside equal sharing there had to be extraordinary circumstances making equal sharing repugnant to justice. This is a rigorous test ( Martin v Martin; De Malmanche v De Malmanche). The extraordinary circumstances and the repugnancy to justice must be considered in relation to each other. When the parties were living together, they both appeared to have contributed to the running of the household. When Mr K was not living in the household he was not contributing. The only asset was the family home which Mrs K had owned with her first husband and wished to retain for her children. Mr K had assigned his share in the home he had with his first wife to his children. These were all potentially extraordinary circumstances and taken as a whole with the extended separations, and the fact that Mr K did not share his superannuation payout or the value of the family car with Mrs K, meant that the circumstances were such that equal sharing would be repugnant to justice. The reasons for equal sharing were unusually weak and there were strong reasons for recognising the wife's contributions of the whole corpus of the relationship property from outside the marriage.

On assessment of the various contributions of the parties an appropriate division was 65 per cent to Mrs K and 35 per cent to Mr K.


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.

The wife's evidence

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...

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