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Can you rely on a Contracting Out Agreement?

Twelve years ago, Terry spent considerable time and money getting a Contracting Out agreement (pre nuptial agreement) completed with his partner, Monique. Not only did it cost him several thousand in legal costs, it was also pretty stressful as Monique didn’t really want to sign it. Now, he feels it was all worth it because he and Monique have just separated and he is relieved that he insisted on protecting his assets, including the home, with that agreement.

Terry came to his first appointment with us clutching his Contracting Out Agreement and feeling confident that while Monique may have decided to leave their marriage, she wouldn’t be doing so with half his hard earned assets. His confidence was to be shortlived.

On speaking with Terry, we learned that in the twelve years since they signed their agreement, a lot of changes had occurred for Monique and Terry. Terry had had a period whereby he hadn’t been in work and Monique had supported him financially, paying all the expenses on the home. They had bought and sold the original home Terry owned along with a number of the other assets they had brought into the relationship and included in the agreement. A couple of years after signing the agreement, they had married and three children quickly followed. On the birth of their first child, Monique gave up her paid employment and become a full time mother. Among other things, the agreement says that Monique has no claim to the home and no claims for economic disparity compensation. At no time, did they review the agreement. Terry told us he hadn’t wanted to spend any more money on it.

We had to tell Terry that there is a high risk his agreement will be challenged by Monique and, if she is successful, the Court would set it aside. If that happens, their property will be divided according to the Property (relationships) Act 1976 and Monique would receive at least a half share of the property that he had tried to protect from a relationship property claim. Terry acknowledged that, in avoiding the cost of reviewing his agreement, he had potentially cost himself a lot more.

Regularly reviewing your Contracting Out Agreement helps to ensure it reflects any changes in your financial or personal circumstances. Like your will, your Contracting Out Agreement needs to be regularly reviewed to ensure it reflects your wishes. While you may not think there have been any changes in your circumstances that make a review necessary, relationship property law and how it is applied by the Courts is constantly evolving. Reviewing your agreement will ensure that it reflects changes in the law and remains current.

If your agreement is not regularly reviewed and you and your partner separate (or one of you dies), you run the risk that the agreement is of no use because it doesn’t reflect your financial circumstances at that time or any changes that occurred throughout your relationship. Furthermore, you run the risk that a Court may decide that the Agreement has become unjust and therefore shouldn’t be of effect thus undoing all your effort and cost of putting the Agreement in place.

We tell our clients to think of their Contracting Out Agreement as similar to the insurance policy they have for their home. You don’t pay one insurance premium and expect it to protect you from the loss of your home forever after. Instead, you regularly pay to maintain your insurance and regularly check that your insurance policy meets your needs and circumstances. Statistically, there is more likelihood of experiencing a separation than your home burning down or being struck by an act of God yet most people are like Terry and don’t pay as much diligence to putting in place a sound Contracting Out Agreement and regularly reviewing it. Don’t be like Terry.

If you would like to discuss protecting yourself from relationship property claims or having your existing arrangements reviewed , call the team at Family Law Results on (09) 297 2010.

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Less Acrimony and Delays – solving the problems of the Family Justice System

When they separated, Tane and Imelda could agree on two things – they did not want to end up in Family Court and they did not want their separation to become a battle ground that their children had to survive. They didn’t want their children to look back on this time as one full of endless arguments. They had seen friends and family members who, while not ending up in Court, still battled out their own separations armed with lawyers sending letters back and forth. This appeared to cost a lot, financially and emotionally.

Tane and Imelda wanted a cost effective process that left them with the ability to share their children’s birthdays without stress. In effect, they wanted the “Chris Martin and Gwyneth Paltrow divorce” – one characterised by dignity and goodwill rather than inflamed animosity.

Like Tane and Imelda, many New Zealand couples facing separation may not realise that a resolution process exists that aims to keep them away from the usual horror stories associated with divorce. Using Collaborative Practice, specially trained lawyers and other professionals provide partners with a safe and dignified environment that is geared towards reducing conflict, focussing on children’s welfare and ensuring sound decisions and solutions are found.

During the process there are no lawyers’ letters. Rather, everyone sits down and works together to find solutions that reflect what is important to each party. Agreements reached are legally enforceable but are often more creative and customised to the family’s needs than court orders or agreements reached through more traditional methods of negotiating between a couple’s lawyers. Many clients, on hearing about the process, describe it as simply “common sense”.

On Monday, the final report of the Independent Panel reviewing the 2014 Family Justice System changes was released. When the 2014 Family Justice System changes were made, Collaborative lawyers were concerned at the narrow emphasis placed on mediation. The Panel has highlighted that this narrow focus on mediation is inconsistent with the original policy intent that family dispute resolution be a flexible concept that draws on a range of dispute resolution models to help families reach agreement. My view is that FDR must include a range of more flexible processes than mediation alone.

Access to justice should mean each whanau has access to the appropriate dispute resolution process that best suits that whanau’s needs. For many, this will be Collaborative Practice which enables families to access legal advice and any necessary wrap around professional services in one complete, cohesive process.

Unfortunately, access to Collaborative Practice is not provided for within the current Family Legal Advice Service or Legal Aid system. Those who qualify for Legal Aid are not given the same range of resolution options afforded to the rest of the community and they are left with no choice but to use processes that may not be the best for them, their whanau and their circumstances. They are denied the support and encouragement to self determine their current and future family disputes that Collaborative Practice offers.

The Panel’s report highlights considerable issues within the present Family Justice System including pervasive delays, confusion and limitations around access to legal advice, inflexible and fragmented services, and a need for targeted counselling and culturally responsive services. In one cohesive process, Collaborative Practice addresses these issues and provides couples like Tane and Imelda with the opportunity to move themselves and their children through separation without pitting them against one another. At FLR, we hope the Government will recognise Collaborative Practice when considering changes to the Family Justice System and include it within the menu of choices for families.

If you’d like to explore whether Collaborative Practice may be right for you and your family, feel free to contact us on (09) 282 3574 or at lawyers@familylawresults.co.nz. We’d love to talk with you.

Ten years of The Family Lawyer!

Ten years! Hard to believe but this blog has been quietly ticking along for ten years. Phew – where did those ten years go?

At Family Law Results, this week we’ve been celebrating by sharing our favourite blogs over on our Facebook page.

Lauren Aspin, stella-solicitor at FLR, picked her favourite – the op-ed article from the NZ Herald that I wrote in the wake of ‘those’ pictures of Nigella Lawson and her husband, Charles Saatchi. Here’s why she chose it:

“The Blog I have chosen is the article about family violence and Nigella Lawson.

Why?

This blog post resonates with me on many levels.

Firstly the way that the violent incident between Nigella Lawson and Saatchi confronts our assumptions about who the victims of family violence can be.

Some of the most professionally intelligent, successful and savvy women I have known have been known to be emotionally stupid in their relationships and personal choices”.

The fact that domestic violence can happen to anyone  stands out as this is a conversation I have had with clients, and my own friends and family. None of us is immune – we can all make poor decisions or allow behaviours to happen that are not ok and which, in hindsight, can seem unbelievable. It comes down to conversations I have had with friends, often female friends, speaking to them about challenging behaviours from their partner that are not ok nor respectful, and opening their eyes that sometimes these little things can mount up.

I also think it resonates as it can be easy to victim blame, but I always try to remind my clients that the behaviour is the issue of the perpetrator not them, and that they are not alone. Many people, from all walks of life find themselves in relationships marred by family violence. We just don’t talk about it – that’s why no one knows. Or we have campaigns that say “It’s not Ok” but “It’s” and how it looks is not discussed

I think the post also speaks to  wider issues we have in New Zealand Society and the reticence of people to intervene when they see violent, racists, xenophobic,  homophobic, sexist or sexually inappropriate behaviour etc happening. This issue is so prevalent throughout New Zealand, we think it’s not our problem, and leave people or avert our eyes, or don’t challenge people. This morning, I was listening on the Radio about bullying in schools being such a huge issue, and how this is symptomatic of these wider issues of NZ society.  This has been a huge talking point of late, in the wake of the Christchurch Terror Attacks, and I think we all need to do some soul searching and be brave to stand up to people, and know that it is the right thing to do to speak up, speak out and challenge anti-social behaviours.”

Keeping the Temperature on Conflict Down

Samantha was angry. I knew this not just because she said it. I could see it exuding from her in the way she sat – jaw clenched, tears welling – to the way she spat the words out when she spoke of her ex, Jeff.

 

Jeff had decided to end their 14 year marriage and she was in emotional freefall, feeling completely blindsided and betrayed. And grieving.

This was the first time I had met Samantha. As we spoke, alarm bells were ringing for me, warning me that trying to resolve the range of issues bourne out of Samantha and Jeff’s separation could very easily turn nuclear.

Family law issues are not clean-cut, clinical, technical issues to resolve. They come with the full range of human emotions. Very often, they come with high drama. Most of the time, there is lots of grieving happening which can be manifested in anger and bad behaviour.

More often than not, one person has made the decision to separate some time ago and as such, has already travelled well along the emotional rollercoaster that comes with that decision. Meanwhile, their partner is playing emotional catchup, travelling on a later departing rollercoaster.

Often the parties’ emotional states render them unable to process information soundly and make settlement decisions. That is not a weakness or a frailty on their part. It is just neuroscience. Very easily the conflict levels can spiral to heights the parties never envisaged they could reach.

As anger and grief take seed and conflict grows, our perceptions become distorted. The story of the conflict becomes akin to a fairy story – complete with a villain, a hero and an innocent victim. Guess what role we rarely assign to ourselves? We start to view things consistently through the lens of our own story. We can easily slip into seeing others as being “for us” or “against us”.

With increasing emotion, our thinking gets cloudy and the neuroscience that is at play means we may become physically unable to make clear, rational decisions.

Our communication starts to deteriorate – we tend to communicate only with those that support our view; our story of the conflict. If we are speaking with our ex or those who don’t agree with us, we tend to do so with the goal of defeating them or changing their views and strengthening our own position rather than with the goal of understanding.

As all of this is happening, the key issues get blurry and unrelated issues and innocent bystanders start to get sucked into the vacuum of the conflict. As the issues become less defined, it becomes difficult to work out what it takes to resolve them.

We get locked into our positions, not wanting the other person to “win” or fearing losing face or looking badly if we back down. We become more and more committed to our positions, even if it makes little logical sense to maintain them.

How we view others changes. The differences between us seem to become larger and larger while the things we have in common appear, to our mind’s eye, smaller and smaller.

Add into all of this, lawyers with a litigious approach stepping in to write letters to assert your position, to demand “disclosure” and to “protect” you and quickly the temperature of the conflict rises. Threats of court get thrown around and, if Court proceedings eventuate,  you are thrust into a process that is largely out of your control and sees the conflict spiral spin faster.

Yes, things could very quickly turn nuclear for Samantha and Jeff. But, the good news is that things needn’t go that way. Your choice of lawyer and the process you choose can have a huge impact on whether your relationship is gently untied or harshly hacked through.

Lawyers who are trained in Collaborative Process (also called Collaborative Law) understand the interplay between their client’s emotional states, the actions they as lawyers take and the level of conflict. They are focused on mitigating conflict, not contributing to it. They have specific strategies to keep communication happening respectfully and to remove the inflammatory letters and threat of court from the resolution process. They are able to support parties to creatively problem solve to find solutions that wouldn’t be possible in more litigious approaches.

Having walked Samantha through all the processes available to her for resolving issues with Jeff, including Collaborative Practice, her relief was palpable. She still felt angry but understood this was a natural part of the grief process she was going through and that she would be supported as she went. Most importantly, she now knew there was a way to get through the separation without that grief and anger exploding into escalating levels of conflict.

The Collaborative Process is not an easy, soft option – there is no way of completely removing the emotion and the conflict felt by the participants. In one sense, it is almost necessary to feel that emotion in the same way that heat is necessary to making creme caramel. However, no one likes burned creme caramel! Using a lawyer trained in Collaborative Process means that, no matter which process you work through, he or she will always be looking for ways to find resolution and to assist you to avoid  being burned by unnecessarily inflamed conflict.

If you would like to explore how you can find a way to work through your separation without the drama, give us a call on (09) 297 2010.  

Guest Blog: Sam from Toughtalk

Last week I blogged about the work of Sam, a clinical psychologist and founder of Toughtalk. Toughtalk’s mission is to improve the mental health record in this country and one of the ways it does this is by breaking down the stigma around men talking about their feelings. Toughtalk has produced two seasons of videos of men doing just that – talking about life’s challenges and what has helped them. Just a warning – if you take a look at Toughtalk’s videos, before you know it, an afternoon will have passed and you will have worked your way through an entire season!

I am rapt that Sam agreed to provide a guest blog for my wee site – Thanks Sam!

 

8 Tips for Supporting a Mate

Men really want to talk, they just need the right environment, attitude, and questions to feel comfortable opening up.

So often people want to reach out to someone but don’t know how to start the conversation, hold a comfortable space, or know what to do when the conversation gets tough. All the tips I’m discussing are tailored for talking with men, but generally apply to women too, especially when a person identifies as being more masculine in nature. A major barrier to talking with men about their deepest challenges is our collective belief that men don’t want to communicate about how they’re feeling.

People always ask me:

“How do you find men willing to open up for your Tough Talk videos?”

The implication of this question seems to be that such men are a rare breed, yet this hasn’t been my experience at all. I regularly talk to men from a variety of backgrounds as I travel around New Zealand and many men leap at the opportunity to tell their stories.

Every so often I come across a man who could be described as “macho”. I find that as long as I use language they’re familiar with, ask open questions, remain respectful, and show a willingness to listen, then almost anyone will open up. The only exceptions have been when someone is really angry, anxious, sad, or simply not in the right mood to talk.

“If you think men don’t want to express their deep emotional pain, then you’re subtly feeding into “the hard man” attitude implicit in Kiwi culture.”

TIP #1: It’s easier for a mate to open up while doing an activity.

 

It can be intimidating for someone to open up in response to an invitation “to talk”. Their mind often goes to wondering what they’ve done wrong. It’s much easier for someone to accept an invitation to do an activity.

Conversations flow better when people are engaged in activity while speaking. For hundreds of years men have stood side by side in silence and companionship as they hunted, primarily using their eyes and body to communicate. Like hunting, other activities can provide a medium for communication. Having something to partially focus on makes tough conversations less intense and opens opportunities for nonverbal communication.

Here’s some one on one activities for you to consider: throwing a ball, walking, playing cards, fishing, building, crafts, running, gardening, shooting hoops, biking, and hunting…

TIP #2: Having the strength to share your own challenges makes it easier for a mate to talk.

 

A standout lesson from my journey has been that when I’m honest about my own insecurities and shed a tear, it supports others to do the same. Baring my soul seems to create a space where absolute honesty feels comfortable and safe. Often I don’t need to ask people any questions afterwards; people’s stories and emotions start flooding out.

If enough of us have the strength to be role models then there is potential for a ripple effect which could contribute to an improved culture of support. We start to see widespread social change when enough people are living according to a new social norm. Being honest about our internal struggles could become the normal thing!

TIP #3: A private space to talk one on one makes it easier for a mate to open up.

 

ISam tip 1t can be really off-putting when someone brings up a sensitive issue in front of a group of people. It’s hard enough to accept challenging issues within the privacy of our own mind, let alone have them broadcast to our peers without warning. It doesn’t matter if everyone can see what’s going on already, talking about it in a group without permission can bring on shame and embarrassment.

 “A person has a much higher chance of working through an issue if their first experience of talking about it is accompanied by feelings of support and acceptance”

Inviting someone into a private space for a one on one chat is a comfortable environment to talk within. There’s a lot you can do to create a tailored space for a tough conversation. For a start, make sure you have enough time to go deep (I recommend around 2 hours, but it fully depends on the situation), you could be doing an activity together (see Tip #1), you could provide some beverages and snacks (there’s something deeply comforting about sharing a meal), you could be playing suitable music in the background, and it may be appropriate to be situated in mutual territory, i.e. neither one of you has more power in the space, such as owning it.

It’s easier to talk when sitting next to someone, angled slightly towards them, but not directly facing them. It can feel more threatening when you’re sitting directly opposite each other. Ideally you won’t have anything in between you, like a table or desk as it creates a barrier to nonverbal communication. I’ve found that an ideal setting is in the outdoors, particularly by a fire, a body of water, or anywhere with a view.

TIP #4: Ask permission to talk and accept “no” for an answer.

 

It is really important to ensure someone is in the right space for a tough conversation. One approach is to invite the conversation through mentioning a relevant situation, e.g. “It must be hard not having your partner around anymore… Do you want to talk about it?” You could also try being more direct “I’ve noticed you’re going through a tough time, do you want to talk?” A useful follow up question is “what’s happening?”, rather than “what’s wrong?”

Sometimes the person won’t be in the right space to receive support. An opportunity for someone to express what they’re going through may be detrimental if they’re preoccupied by a strong emotion or mood, an immediate problem, a pressing task, or about to enter a situation where it isn’t safe to be emotionally vulnerable. Once you open something up it can take a while to close, so make sure you factor that into timing.

It is important that you respect when someone says “no”. Let them know you’re there for them when they’re ready to talk or make a date for the future.

There is also the possibility that you’re not the best person for them to talk to. If you think this is the case, you could ask someone else if they would be willing to support them instead. You could also ask the person if you’re the right person for them to talk to and find someone else if you’re not. You might feel offended that someone isn’t willing to open up to you. Try your best to remember that support is about what is best for the person you are supporting.

TIP #5: Listen attentively until they’re finished talking.

 

Sam 5This may sound obvious, but I can’t stress it enough – listening is a skill that’s extremely important to practise if you want to be a good support person.

Often when you’re listening to someone, something they say will trigger a thought in your head. This takes your attention away from listening. Usually when you end up engaging with a thought, you will want to talk about what you’re thinking. The issue with engaging with your own thought processes is that you’re not fully listening at the time.

At some stage the person you’re trying to support will realise they’re not being listened to, which may lead them to think that their point of view is not worth hearing. You could also miss a crucial part of what they’re saying, which could result in you missing an opportunity to say something they desperately need to hear at the time.

So how do you listen skillfully? It’s easy in theory, but it takes lots of practise to get good at. The first part of the skill is noticing when your attention has wandered away from listening. You may be dwelling on something that was said, thinking about what to say next, or distracted by something else going on around you.

When you notice that you’re engaging with your own thoughts, rather than listening, let the thought go – you don’t need to be thinking about it in that moment. I can’t stress how important this is, LET IT GO, even if it means forgetting it. People need for you to be holding a space of listening when they reach moments of expressing raw emotion and vulnerability!

Once you let go, bring your attention back to listening again. From there it is a continual process of noticing when your mind has drifted, letting the thought go, and focusing on listening again. Notice, let go, listen – again and again while the person is talking.

If it looks like they’ve got something else to say, try waiting patiently. If you see someone hesitate or say something like “oh no, don’t worry”, try asking them what they were about to say – they may need your encouragement to get it out. The entire conversation has been getting them to this point. It’s also useful to ask if they’re finished before saying something in response.  

TIP #6: A mate’s burden is less heavy when you feel emotions with them

 

 “A common misunderstanding many people have is that you can solve an emotional problem with logic. This approach makes logical sense because people are brought up to solve logical problems with logic. However, the best way to solve an emotional problem is with emotion. It is totally logical”

Dr. Robin Youngson started Hearts in Healthcare – a movement that promotes the phenomenal healing effect that can occur when people take the time to share other people’s pain. For a doctor, this may look like sitting with a patient, listening, and connecting with them until they experience a taste of what the patient is experiencing.

The phenomenal healing effect of compassion is not restricted to health professionals. It is a method that anyone can employ who wishes to support someone. The method is simple – hear someone out, look them in the eyes, put yourself in their position, and let yourself feel any feelings that come up.

“It is important that you don’t offer support from a position of being “more well”, which can come across as sympathy. For example, “I’m really emotionally intelligent, so I think I can help you.” We’ve all got mental health and we’re all vulnerable to loss, so it seems only right to speak to each other on that same level.”

Before offering support, check in with how you’re feeling and decide whether you have enough energy. If the answer is not clearly a yes then consider if there is anyone else around who may be able to support the person you’re concerned about.

It’s important to have boundaries when people are asking you directly for support. What that means is being able to say no when you’re not up to it. I personally find that people respect no, but respond to it even better when you explain why you’re not up to it. This reveals that you’re also vulnerable, which at least tells the person that they’re not alone.

You could support the person to find someone else, or plan a conversation for a later date. You will be much better at supporting someone when you’re feeling mentally well yourself.

TIP#7: Before finishing challenging conversations, try talking about something positive.

 

Another lesson I learnt while working as a psychologist was not to suddenly finish in the middle of a tough conversation because I was out of time. It can leave the person in worse shape than before you started talking. One way to know when a tough conversation has reached a natural end is that you feel a lift in mood and sometimes end up laughing and joking.

It’s important to ensure that there is at least 10 minutes to unwind from a conversation. The best technique I’ve learnt is to get someone to teach you something. Focusing on teaching shifts their attention. Their mood transforms as they communicate their knowledge. People often seem hesitant initially, but once they think of something to teach you, both of you will enjoy the shift in dynamic between the giving and receiving positions.

TIP #8: Whatever happens, let them know that you’re there for them.

 

Sam 8The toughest thing about tough conversations is that they don’t always go well. Sometimes it feels like talking made something worse, sometimes people aren’t ready to open up a wound, and other times someone might feel angry or upset by something you said. Whatever happens, making time to support someone sends a message that you’re there for them, which is often the most important thing.

“If a conversation doesn’t appear to go well, try not to despair. I’ve personally been surprised just how much people process after a conversation. The benefits of supporting someone may not show up for days or even years.”

Sometimes on reflection I realise something I said may have been more harmful than helpful. If this happens, l always seek to “check in” about it later with the person. Ask an open question when you’re checking in, so you don’t bias their response, e.g. “do you remember when I said… how did that land for you?” If they let you know something upset them, then it is an opportunity to apologise and heal any rift caused between you.

If they’re not ready to open up, you could make it easier for them to contact you in the future, e.g. “I’m here for you, and I’m a phone call away if you ever want to talk”.

Advanced Tip: Acknowledge the advantages and usefulness of a point of view before challenging it.

 

Most of the time there are at least a few aspects of what someone is saying that are useful. However, other parts of what they’re saying may be contributing to the problems they’re experiencing. It is important to first identify the useful parts by pointing them out to the person. Acknowledging the truth of someone’s experience helps them see that you understand and respect them, which may help them accept your challenges to the aspects of their point of view that you think are less useful.

If they can keep the useful parts and modify the problematic parts then the result will most likely be a more balanced and healthy point of view.

Talking about suicide

 

People commonly think about suicide when they’re having a tough time. It is really supportive to keep calm and level headed if someone brings up suicidal thoughts. More often than not people won’t be planning to act on their thoughts. It is helpful for people to talk about their suicidal thoughts without feeling judged, or having you jump into panic mode, because it helps them realise that thinking about suicide is a normal part of coping.

If there is any reason to suspect someone is likely to attempt suicide imminently or has a method planned that is likely to be effective then it is important to act. Call 111 or go to your nearest emergency department (ED). There are also other options available to consider on the Mental Health Foundation’s website: https://www.mentalhealth.org.nz/get-help/in-crisis/

If the person you’re supporting is not planning to act on their thoughts, ask them questions to explore what is going on behind their thoughts – “what is causing the pain that you want to escape from?” It is helpful to talk about the people and activities in the person’s life that are likely to keep them safe. It is also useful to provide your phone number and ask the person to promise to call you if they find themselves going beyond thinking to taking action. You may be able to support them to get professional help before a crisis occurs – I recommend the following two search engines to find a psychologist, or talking to your GP about local therapy options.

New Zealand College of Clinical Psychologists

Find a Psychologist

Sometimes people won’t bring up thoughts of suicide without being prompted because they’re worried that they could be sent to hospital. I’ve found that if I’m concerned someone is thinking about suicide, then they usually are. People will feel more comfortable to talk about suicidal thoughts if you confidently ask them if they’ve been thinking this way; it shows them that it’s a normal response to their situation.

Final Thoughts

 

I believe good support boils down to being there for someone, creating a comfortable space, and sharing feelings in a genuine way. We absolutely need more support to take place at a community level if we want to see mental health and well-being to improve in Aotearoa. Get out there and support a mate, don’t be afraid to ask for a help, and let’s create a more supportive culture together.

Let us know in the comments if you tried any of these tips, and how they went! We’d also love to hear if there’s anything you’d like for us to go deeper on.

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A Man on a Mission

It’s not every day that you meet someone who is putting everything out there to make a significant difference to New Zealanders’ lives. Last night I got to meet such a person – Sam from Toughtalk.

Sam is a clinical psychologist and founder of Toughtalk. Toughtalk’s mission is to improve the mental health of New Zealanders by getting men talking about feelings and the things they do that serve their wellbeing. In two seasons of pretty sharp videos, Sam gives some every day Kiwi blokes the space to talk about wellbeing and we get to watch the conversations unfold. Given the statistics relating to male suicide in New Zealand, this is seriously important work!

Go check out his videos and if you like what you see, consider supporting Sam in his work by spreading his work or by making a donation.

You can check out Sam’s videos at: www.toughtalk.nz

 

Keeping Yourself Covered – Helping the Kids buy a Home

Miranda and Simon’s daughter, Miria, is a very fortunate young lady. Miria is about to achieve what we are told is the unachievable in Auckland – she is buying her first home. She is fortunate because Miranda and Simon are able and willing to help her make this purchase. Dipping into their own investments, Miranda and Simon are giving Miria $120,000 of the deposit she requires. She will, however, be responsible for the mortgage. Hearing this over a couple of wines one evening with Miranda, I quickly switched into lawyer mode and started raining on Miranda, Simon and Miria’s parade.

“What will happen if Miria’s boyfriend moves in?”, “Have you considered how you would feel if Miria, one day, separates from her future spouse or partner who ends up with half of the house and hence half your gift?”. My questions rolled on as the colour drained from Miranda’s face and her glass rapidly grew emptier. What started out as a genuine desire to help their daughter get ahead was fast becoming more complicated and risky.

What can you do if you want to give your child financial assistance but don’t want his or her future partner or spouse benefitting from your generosity in the event of a separation? With housing affordability being a hot issue in all the major centres, this question is increasingly coming up.

“We’ll make her do a prenuptial type agreement” was Miranda’s first thought. It’s a good idea. However, its difficult to enforce. Once the money is paid out to Miria, Miranda and Simon will be unable to require Miria and her future partner to enter into a Contracting Out Agreement. Miria may see the sense in protecting her investment from relationship property claims but, once cupid’s arrow hits her, she may be unable to imagine the relationship ever ending. Furthermore, the law may see Miria as being in a de facto relationship when she doesn’t. Perhaps Miria and her partner won’t want, or be able, to spend money on each having a lawyer to complete an agreement. Perhaps life may just be busy and Miria and her partner simply don’t get around to it. Whatever the reason, there’s a high chance an agreement won’t be entered into.

“We’ll do it in a trust” was Miranda’s next solution. The solution looked to by many is that either they form a family trust to make distributions to their children or their child forms a trust to own the home. Forming a trust, in itself, is a costly exercise and the trust will require ongoing cost and attention in order to prevent it being challenged in the future. Even if a trust is formed, this alone will not likely protect the monies or home from a future relationship property claim. Other steps, such as a loan agreement and/or a Contracting Out Agreement will still be needed. You will need more than one moat around your castle.

So what should Miranda and Simon do? The simplest and probably most cost effective thing to do is have a loan document prepared and signed. This will confirm that the money being advanced is a loan and not a gift. If Miria and a future spouse separate, the loan will be taken into account as a debt owed.  The loan can provide that repayments are not required unless demand for repayment is made. On a future separation, Simon and Miranda can demand repayment to ensure half the monies don’t go off with Miria’s ex.

Got a question or concern about protecting property from relationship property claims? Give the experienced team at Family Law Results a call on +64 9 297 2010 and we will listen to your concerns and guide you to find a solution that best meets the needs of you and your family.

Keeping Yourself Covered – Protecting Gifts from Parents

Rebecca was struggling – she was facing all the usual challenges of a being a first-time mother to a three months old baby. She was also contemplating separating from Alvin, her de facto partner of five years.  We discussed the all too real pressures that coping with the demands of a baby can place on the relationship between its parents. We explored what, from Rebecca’s perspective, would need to change to prevent a separation and the supports that were available to her and Alvin.

Rebecca was keen to try some of the interventions we came up with that may address her concerns with her relationship and avoid a separation. However – just in case – she also wanted some picture of what may happen in terms of their property should they end up separating.

Last year, she bought the home that she and Alvin live in. Her parents generously gifted her $150,000 towards the purchase (they’d done the same for her older brother). She also used $80,000 of her own savings. She earned more than Alvin so she was also paying more towards the home’s mortgage and expenses.

Rebecca proudly told me she had safeguarded things by ensuring the home was registered in her name alone. She had also borrowed the mortgage in her name alone. Alvin’s payments to her were purely “board” for living in the home. She was feeling happy and confident that she’d set things up so that Alvin had no claim over her home and couldn’t walk away with any of her parents’ gift.

Sometimes as family lawyers we must rain on people’s parade. We can’t always tell clients what they want to hear. This was one of those times.

Despite the fact the home and mortgage were in Rebecca’s sole name, she was dismayed to learn that by law the home was relationship property. The principal family residence is given special status in law as the “family home”. Given their relationship had existed for more than three years, the law provides the home would be divided equally between her and Alvin if they separated.

Rebecca challenged me on this – What about the fact she had contributed more financially to the home and its expenses? This is a common situation where one party earns more than the other in a relationship. Unfortunately for Rebecca, it does not give rise to a legal basis for departing from equal sharing of the family home. The equal division of the family home applies irrespective of how or when the home was acquired.

Rebecca’s savings that she contributed to the purchase of the home were acquired during the relationship so these would be regarded as a contribution of relationship property to the acquisition of the home, even though they came from her income. If they had been squirrelled away by her prior to the relationship, they would be her separate property but once they were contributed to the family home with her consent, they become relationship property as part of the home.

Rebecca was beside herself but felt she had one last hope –  what about her parents’ gift? I questioned her further about the intention behind her parents’ contribution to the purchase of the home. She was very clear it was a gift and that they had gifted a similar amount to her brother when he bought his home some years ago. She indicated there was never any intention of it being repaid to them. There also was no intention that they would have any interest in the home. There was no loan documentation completed. In all the documents provided to the Bank for the mortgage, the monies from her parents were declared to be a gift.

While one view could be that her parents only ever wanted Rebecca to benefit from the gift if her relationship with Alvin broke down, this hasn’t prevented the Court finding in other cases that the family home gets divided equally even when gifts have been used to purchase it.

Understandably, this was not the news Rebecca had expected. She may have grounds for an “extraordinary circumstances” claim to depart from equal sharing given the level of her contributions compared to Alvin’s but such claims are notoriously difficult to successfully mount. Even if she was successful in such a claim, she is likely to incur considerable legal costs, stress and delay in the process. Rebecca felt resigned to her only hope being that Alvin may “do the right thing” and agree to the gift from her parents being treated as her’s alone.

What could Rebecca have done to avoid this? Firstly, when she bought the home she should have been upfront with her conveyancing lawyer about her relationship with Alvin and that he would be living with her. Taking advice, and acting on that advice, at the time the home was purchased would have prevented her being left in this predicament. She could have:

(a) put the home in a family trust and coupled this with a Contracting Out Agreement to set out that any interests or property rights she may have in the trust are her separate property. This may be more than needed for Rebecca’s circumstances and having a Trust comes with ongoing costs and administration;  or

(b) entered into a Contracting Out Agreement with Alvin to preserve the gift as her separate property and to set out how the home was to be treated if they separated; or

(c) had her parents own a share in the home proportionate to their contribution to its purchase. If she had done this, it would have been prudent to enter into a Property Sharing Agreement with her parents to set out the basis on which they co-owned the home and their respective obligations and rights. Depending on what she wanted to see happen to her interest in the home on separation with Alvin, a Contracting Out Agreement with Alvin may also have still been needed; or

(d) entered into a loan agreement with her parents requiring repayment of the monies they advanced so that on separation, the monies would be repaid back to her parents (who could have then advanced it to Rebecca alone again). Again, a Contracting Out Agreement with Alvin would have been prudent if Rebecca didn’t want to be in a situation where the home, after repayment of the loan to her parents, had to be shared equally with Alvin.

All was not lost for Rebecca – Contracting Out Agreements can be entered into at any time during a relationship, not just at its inception. Rebecca said Alvin had always taken the view that the monies from her parents was “hers”. Therefore, she believed that Alvin would willingly enter into a Contracting Out Agreement to confirm that the gift from her parents should be preserved as her separate property and she should receive this if they did eventually separate.

Worried about what may happen to your property if you separate? Going to gift money to your child to purchase his or her home? Looking to have your partner or spouse live in a home you are buying? Give the team at Family Law Results a call on 0064 9 297 2010 so we can help you ensure things are set up correctly in order to avoid shocks like Rebecca had!

Keeping Yourself Covered – Protecting Your Contracting Out Agreement

After years of careful saving and contributing to Kiwisaver, Murdoch was excited about buying his first home. On learning that Murdoch’s partner was going to be living in the home with him, Murdoch’s conveyancing lawyer quickly sent him to see me for a Contracting Out Agreement.

Murdoch explained to me he wanted the Contracting Out Agreement to make sure that is and his partner ever split up, “the home is all mine” and that his partner did not have any claim to it. Murdoch’s rationale was straight forward enough – the relationship was only a year old, he was providing the deposit that he had saved hard for and would be liable for the mortgage. Meanwhile, his partner hadn’t been so prudent and did not have Kiwisaver nor much in the way of savings to contribute.

Contracting Out Agreements are often referred to as “pre-nuptial agreements” but, in reality, one can be entered into at any stage of a relationship. They are commonly used to preserve assets as the separate property of one spouse or the other in the event of a separation. As in Murdoch’s case, this is often in recognition of the greater financial contribution made to the acquisition of an asset by one spouse. Some parties will each bring assets of their own to their new relationship. Sometimes they have children from previous relationships that they wish to have benefit from the property they have each come into the relationship with. All are situations that can be accommodated for in a Contracting Out Agreement. We all insure our significant assets against events such as fire, natural disaster and theft. Statisically, you have more chance of experiencing a separation or divorce than those events. Think of a Contracting Out Agreement as a way of insuring your property from relationship property claims in the event of a separation.

Murdoch’s agreement was quickly sorted out with his partner. However, Murdoch was concerned at my advice that the agreement be regularly reviewed, especially when there were significant changes in their relationship or financial situation. He really didn’t want to have to spend more money on the agreement in the future. He particularly struggled with my advice that, over time, he may have to consider providing for his partner to have some interest in the home. I had to caution Murdoch that the protection the agreement afforded him could wither away over time unless it was regularly reviewed and amended to keep up with changes in his relationship.

Agreements that square away the major assets to just one spouse, leaving the other out in the cold, can be vulnerable to being set aside by a Court in the future if giving effect to the agreement would give rise to serious injustice. An agreement that is just today, could be render unjust as the relationship evolves. There is only so much crystal ball gazing into the future that we can do when we enter a Contracting Out Agreement.  Agreements are particularly vulnerable when the parties to it simply place it in a top drawer to gather dust and their circumstances change over time. As time marches on, contributions (financial or non financial) by the other spouse could mean the agreement becomes unjust, particularly if children come into the picture.

This is not to say such agreements are a waste of time. It just means that, like your insurance policies and your wills, they need to be treated as a “living document” if they are to continue to be effective. You don’t just pay your insurance premiums once and forget about the policy. At various times, you will review your insurance cover, sometimes incurring higher premiums, to ensure the policy meets your needs and that you are sufficiently covered. Similarly, you need to review and update a Contracting Out Agreement regularly with the benefit of legal advice to ensure it still covers you if you ever have to bring it out of that top drawer.

Thinking of a Contracting Out Agreement? About to move in together? Been living together for a while but concerned to get your affairs in order? Got a Contracting Out Agreement but haven’t reviewed it in years? Give the experienced team at Family Law Results a call on +64 9 297 2010 and we will listen to your concerns and guide you to find a solution that best meets the needs of you and your family.

When Child Support gets in the way of a holiday…

Imagine being at the airport, neck pillow, passport and tickets in hand, looking forward to your holiday overseas only to find yourself stopped from travelling for failing to pay Child Support. Media reports this week indicate this has been a reality for record numbers of Australian parents with outstanding child support debts.

Could this happen to you in New Zealand if you haven’t paid your Child Support debts before leaving the country? Yes, it can.

Inland Revenue shares information with New Zealand Customs and Internal Affairs to enable it to locate those who owe child support who are travelling. If IRD believes you are about to leave New Zealand with the intent to avoid payment of your child support debt, it can seek to have you arrested and brought before the Court. if this happens, forget about your business trip or holiday – the only place you are travelling to is straight to the cells followed by a sojourn in front of a District Court judge.

When you appear before the Court, it can order that you not leave New Zealand without the Court’s permission. You can also be ordered to surrender travel documents and/or provide security for the payment of the debt.

If you have Child Support debts, our advice is to always come to payment arrangements with Inland Revenue before it takes enforcement action, including stopping you from travelling. This will save you a lot of penalties and enable you to still enjoy your trip.

Got a Child Support issue you need legal advice about? Contact the team at Family Law Results on 0064 9 297 2010 or at lawyers@familylawresults.co.nz.