Q. My husband moved out last year after 8 years of marriage. We agreed straight away that it would make more sense for me to take the family home and for him to take our rental property plus investments, including money he invested in his friend’s business. However, now that we have got around to drawing up some documentation, it looks like some of those investments are not worth as much as he thought, and he wants to change our agreement. I’m very unhappy about this as firstly, it isn’t fair to change his mind now and secondly, I asked him not to invest in his friend’s business or bitcoin, as both seemed risky! I have our initial agreement all documented in emails, where do I go from here? Also, he wants me to sign divorce papers at the same time as he is keen to have the divorce through asap. I want this too, but I’m not sure how long we have been separated legally speaking. Our problems started about 3 years ago. We were leading separate lives for a lot of this time and my husband stayed elsewhere for a while but there were periods that we were back together trying to make it work.
A. Verbal agreement
Unfortunately, a verbal agreement is not enough when it comes to dividing your relationship property. Nor are emails – these are just regarded as part of the negotiation process.
For an agreement to be legally binding, you and your husband need to sign a formal written agreement. You would both need to receive independent legal advice and your signatures witnessed by your respective lawyers.
Valuation of property
The valuations used in an agreement are usually carried out as close as possible to the date it is signed. You could use a different valuation date, but you would both need to agree on this.
If you don’t agree with the investment values your husband puts forward, you should arrange for your own independent valuations.
If you’re unable to reach agreement, you can apply to the Family Court to decide. When this happens, the assets need to be valued at the date of the hearing. It could take 12-18 months to get a hearing, so it’s possible the investment values could fluctuate further.
Couples often have different risk tolerances when investing. Although you might not agree with your husband’s choices, I’m afraid until you have a formal agreement or there is a Court order, you will both remain owners of all your relationship property, whatever the values may be.
Getting a divorce
To get a divorce in New Zealand, your marriage needs to have “broken down irreconcilably”. You also need to have been living apart for two years before applying for a divorce.
When calculating the two-year period, the Court allows couples to live back together for up to a total of three months when trying to work things out. If it is any longer, then the two-year “living apart” period starts again.
You can apply for a divorce together or one person can apply. For either type of application, there is a small filing fee.
You’ll need to state the date you stopped living together in your application. If you can’t agree on this, you can apply to the Family Court to make a Separation Order, to declare that you separated on a particular date. To do this, the Court will look at when you were last together as a couple and consider factors like when and for how long your husband lived elsewhere, your financial interdependence, sleeping arrangements, and whether you shared your day to day lives, such as socialising with friends and performing household duties.
Have a think about these aspects of your lives to determine the date when you separated. It is understandable to want your divorce finalised as soon as possible, but the application for divorce is a legal document and you are obligated to complete it truthfully.
You need to wait two years after a separation before you can divorce. For some couples there is not an obvious separation date. In this situation, there are questions you can consider about your lives together that will help you pinpoint the date.
As you’ve found, asset values can change a lot between the date you separate and the date when you complete your final settlement. I encourage people to formalise their settlement agreement as soon as possible after separation, so they have certainty over their assets and the value of those assets.
The longer the process takes, the more areas of contention seem to arise and the more stressful it is for a couple.
In my experience, having a final settlement enables couples to move on more quickly and have the best chance of remaining on good terms.
This article was first published in the New Zealand Herald.