Q: I found out that my husband is gambling on horses. I had no prior knowledge of it, but from what I know, he has squandered away much of our retirement savings. He occasionally smashes plates and throws household items at me. I don’t have any savings of my own that he doesn’t also have access to.

Does any of this affect my share of the relationship property if I decide to separate from him?

A: When you separate in New Zealand, all your relationship property should be split 50:50.

It does not matter why you're divorcing, or how the partners have conducted themselves throughout the marriage or relationship. Both partners are still entitled to an equal share of relationship assets.

This is what is called a "no-fault system" for the division of property.

Family lawyers are so often asked whether poor behaviour could ever be used as a means to affect one parties’ share of the relationship property pool.

The answer is only in very extraordinary circumstances.

‍Misconduct

Relationship issues may include infidelity, excessive and wasteful spending (i.e. gambling), and even criminal behaviour.

Misconduct may sometimes form part of the background when determining what contributions each party has made to a relationship (which the court is sometimes required to do). One party may have had to contribute more, whether financially or otherwise, because of the other person’s misconduct.

For example, if one party has spent time in prison while the other was left to care for children alone and financially support the family, the party at home has had to increase their contributions to the relationship because of the other party’s behaviour.

The law on misconduct

A particular section of the Property (Relationships) Act deals with misconduct. The Court can only take misconduct into account if:

1.      There are specific legal issues, including issues that require an assessment of the contributions each party has made to the marriage or relationship;

2.      That misconduct is ‘gross and palpable’; and

3.      The misconduct has significantly affected the extent and value of relationship property.

This is a high threshold, so there have only been a few cases where people have been successful in using that part of the law to get a greater than 50 per cent share.

It is rare that circumstances come before the Court which are truly extraordinary. Unfortunately, it is not at all uncommon for parties to a relationship or marriage to behave poorly and even engage in criminal activity.

Gambling

The behaviour has to be severe. One example could be where one partner gambles the family's assets away.  

I will need more information as to the extent of your husband’s gambling. If he has spent most of your collective retirement savings, it is fair to say that the misconduct significantly affected the extent and value of the relationship property pool.

Family violence

In most cases, family violence as misconduct will not warrant a change from the usual 50:50 assets split.

Even if the violence is severe, there needs to be a significant impact on the assets that belong to both of you. This requirement focuses the inquiry on financial misconduct, such as gambling your savings away.

Unfortunately, a number of broken household items is unlikely to "significantly" reduce the extent or value of your relationship property.

Family violence, while extremely serious, may not affect the extent or value of what you own together. If so, it will not betaken into account as misconduct.

You may contrast this with B v H, where the misconduct justified a departure from equal sharing. The wife was the main financial contributor in the relationship. Throughout the relationship, the husband used physical violence and control touse these contributions for himself.

Room for reform

The above requirements are significant barriers to taking into account family violence.

There is a strong view that family violence should have greater relevance to how property is divided at the end of the relationship.

It follows a growing awareness that family violence has ongoing economic consequences for the victim of family violence, and their contributions to the marriage or relationship.

Summary

The end of a marriage or relationship is extremely difficult for all parties and misbehaviour adds insult to injury.

It is entirely understandable why a person may want the division of relationship property to be adjusted to receive some recompense for wrongs committed during the relationship.

However, it is important to understand that circumstances where misconduct will be relevant to the division of property are rare.

It sounds like you have been in a very distressing situation and that the outcome for you, financially speaking, maybe less than what you think is fair. You will need to seek legal advice as to whether they apply to you.

Family violence resources

If you feel threatened or are in immediate danger, please call the Police on 111.

If you or someone you know is facing domestic violence, please contact a family violence service to help you take urgent steps in protecting you and your children. You can find a comprehensive list of family violence helplines and services on Family Violence: It's Not OK.

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