If you are beginning (or ending) a relationship, chances are you want to protect what you consider solely ‘yours’. Separate property is not divided on separation (or death) and the property remains the property of the person that owns it.
Separate property definition
Separate property, in a broad sense, is property that is not relationship property.
Property acquired before a relationship is usually separate property. For example, a house that is used as a rental during the relationship will remain separate property.
This also includes property acquired through an inheritance or from a trust, where the property does not come from the other partner, i.e. it must be from another person/trust.
Are gifts marital property?
Property received as a gift from a non-partner is also separate property. For example, if a parent gifts a child money, then that money is separate property.
Are interspousal gifts marital property?
A gift from a partner is also separate property unless it is used for both partners’ benefit, or it is the family home or a family chattel. For example, a ring or watch given to a partner would only be used by them and it is therefore separate property. On the other hand, giving a person a car that is used for the family is a family chattel and therefore relationship property.
Can separate property become relationship property?
There are ways in which separate property can become relationship property. Property usually loses its status as separate property if it is mixed with relationship property or used for relationship purposes.
For example, if a person owned a house before the relationship began and the couple moves into the house, it will become the family home and therefore relationship property. If the couple move out of the home before separation – if, for example, they buy another house and rent the partner’s house out – then the property will again be separate property.
As a further example, if money received from an inheritance is used to buy a house that is used as the family home, that money will lose its status as separate property. Repaying a mortgage with separate property usually means that the separate property status of that money is lost.
These examples show why it is so important to have a contracting-out agreement.
by Clinton Light, Special Counsel, Shine Lawyers, Christchurch.
Contact Shine Lawyers for legal advice
Shine Lawyers New Zealand has a wealth of experience in representing clients going through separation or protecting their assets in a new relationship. Our depth of experience ensures we are able to achieve the best result possible for our clients, helping them get the outcome they need so they can move forward with their lives.
Feel free to phone us to discuss, or make an appointment to come in to meet us, so that we can start helping you to come up with solutions.