Ending marriages of short duration

Whirlwind romances (and radio competitions!) can be wonderful and dramatic things. We've all been taken by surprise at some stage in life by a friend announcing a wedding to someone they haven't known for long but insists 'this is the one'. Hollywood loves the Las Vegas style wedding too. Sadly, however, some of these more dramatic pairings don't stand the test of time and the law makes special provision for what's known as a 'marriage of short duration'.

The Property (Relationship) Act 1976 (usually known as the PRA) applies to anyone who has been in a relationship whether it's a marriage, a civil union or a de facto situation.

Marriages of three years plus
Under the PRA the rule of thumb is that property is divided equally after separation although there are various exceptions, particularly where prenuptial arrangements are in place.

The definition of property under the PRA includes tangible and intangible property. Tangible property includes items such as houses, cars, furniture, jewellery, money, equipment and so on. Intangible items are such things as business interests and superannuation benefits.

All property owned by both parties has to be considered and classified, and must be disclosed to the other partner regardless of when it was acquired. In some situations a specialist valuer will be needed to help sort this out.

Marriages of short duration
The PRA defines a 'marriage of short duration' as one lasting for less than three years. The 50/50 rule only applies to marriages of short duration when the contributions to the relationship are equal.

In a 2012 decision¹, the High Court held that "the determination of the duration of the parties' relationship is fundamentally a determination of the fact". The courts will look at the factual matrix and circumstances of a particular couple.

When dealing with the property division in a 'marriage of short duration' the court must consider if the contribution of one spouse to the marriage has clearly been disproportionately greater than the contribution of the other spouse. The contributions of each person are set out in section 18 of the PRA and include:
• Care of any child of the marriage (this can include step-children)
• Management of the household and the performance of household duties
• Provision of money, including the earning of income, for the purposes of marriage
• Acquisition or creation of relationship property, including the payment of money for those purposes
• Payment of money to maintain or increase the value of: 
    o    The relationship property, or 
    o The separate property of any spouse or any part of such property
• Performance of work or services in respect of: 
    o The relationship property, or 
    o The separate property of any spouse or any part of that property
• Forgoing of a higher standard of living than would otherwise have been available, and
• Giving of assistance or support to the other spouse (whether or not of a material kind), including the giving of assistance or support that aids the other spouse in the carrying on of his or her occupation or business.

Once all of these factors are considered the courts then decide who gets what.

The principle is straightforward – at least in theory. Spouses are entitled to an equal share in the relationship property unless the contribution of one is considered to be clearly greater than that of the other.

Interestingly if a marriage or civil union of short duration (even if very brief) is ended by one spouse dying, it will be treated as a marriage or civil union of long duration. This means the surviving partner is entitled to an equal share of the property unless a court considers that would be unjust.

Different for de facto couples
The rules for dividing property when a relationship is of short duration (usually less than three years) are different for those in a de facto situation.

In a de facto relationship of less than three years, orders can only be made if the court is satisfied there is a child of the de facto relationship or an applicant has made a 'substantial contribution' to the de facto relationship and the failure to make an order would result in a 'serious injustice'.

If you're concerned about asset protection and the division of relationship property, do talk with us early on in your separation.

Sadly not all whirlwind romances have the Hollywood ending even if they do begin with an Elvis impersonator in a chapel in Vegas!

-----

1    RSQ v BQ [2012] NZFC 272