Divorce property lawyer

Who gets the dog? … and other divorce property questions answered

Alex McDonald | Divorce Property Lawyer | Auckland

My husband owned a home before our relationship began. During our relationship we used that home as a rental and used the rent income to pay for holidays for us both. We also used a mortgage over that home to borrow to buy another property. Now that we have agreed to divorce does the home owned by my husband before the relationship get shared equally or is it his separate property?

Leaving aside any rights to share in any increase in value of the property during the relationship (which is a separate topic click here to read more about), the property owned by your husband before the relationship began stays separate property. The fact that the income from the property was used to fund holidays or as security to allow you to obtain finance to purchase another property does not alter that.

My wife and I both owned our own homes when the relationship began. During our relationship we used my wife’s home as a rental, and we lived in the home I owned. What can I expect to happen?

The home you lived in during your relationship is the ‘family home’. It gets divided equally no matter who it comes from. Here, assuming both your homes were capable of being a family home when your relationship began, but only one of those homes was used as the family home a divorce lawyer could make a good argument that your share of the relationship property needs to be increased to do what’s fair to compensate for the inclusion of only one of the homes in the relationship property pool.

I owned my own home when our relationship began. We lived there for five years but have used the property as a rental for the past 10 years. Can my husband get half the value of the property?

There is a long answer to this question, but the short answer is that you’re entitled to claim the property as your separate property. If you had both stayed living there it would be shared equally as the family home but once you moved out the property reverted to its separate property status so 50-50 sharing does not apply.

During our marriage my wife’s parents advanced to us $100,000 to put towards the purchase of our family home. Now that we have agreed to divorce my wife and her parents say that the money was a loan, not a gift. What are the rules for deciding whether the money was a gift or a loan?

As any divorce property lawyer will tell you,  a lot turns on whether the advance was a gift or loan. If it was a loan, it’s a relationship property debt. That means that’s the $100,000 can be deducted from the relationship property pool before relationship property is divided equally. If it was a gift no deduction is made.

The starting point is that where a parent advances money to a child (even an adult one) there is a presumption that the money was intended as a gift. However, that is not an end to the story. The overarching question in deciding whether the money was a gift, or a loan is what did your wife’s parents intend? That can only be answered by looking at the circumstances in which the money was advanced. What words were used both in writing and orally? Was there any written agreement or an evidence of an agreement that can be pieced together from what was written and what was discussed at the time to establish that the advance was a gift not alone?

My partner and I have agreed to divorce. Which one of us gets to keep the dog?

Pets are classified as family chattels and family chattels are divided equally. Clearly in divorce property disputes when it comes to dogs (or cats, for that matter) that isn’t a long-term solution, so the court has formulated its own way of deciding who gets to keep the family dog. That is by deciding what’s in the dog’s best interests. That means considering things like the dog’s needs, who takes the best care of the dog and who is able to offer the best home for the dog.

My husband gave me his mother’s jewellery but now that we have agreed to divorce, he says he wants it back. Do I have to give it to him?

Gifts from one spouse to the other become the separate property of receiving spouse. That means you get to keep the jewellery.

For further reading from Alex McDonald, divorce property lawyer Auckland, about how increases in the value separate property can become relationship property click here.

Alex McDonald I Divorce Property Lawyer I Auckland