As more Kiwis move to Australia, differences in family law between the two countries become more important when relationships break up.
Complex issues can arise around applications for the division of property. Generally speaking, the choice of law is determined by the law of the country in which the couple live, except when it comes to real estate property. In Australia, at least one member of a couple must be an Australian citizen, or present in Australia at the time of the application over real estate. But in New Zealand, there is no such requirement, though inherited property is treated as separate property and generally protected from division.
Unlike Australia, the law in New Zealand provides that were a couple (whether married, de facto or same-sex) had been together for three years of more, there is a presumption that relationship property is divided equally – subject to some very limited exceptions. In nearly all New Zealand cases, the family home, irrespective of who initially owned it, would be divided after three years of a relationship.
Again, unlike Australia, a claimant’s access to trust property in New Zealand is much more limited. Generally speaking, if property is owned by a trust, then it is excluded from consideration under New Zealand law, subject to a few expectations. This often leads to a position where substantial amounts of property are excluded from the equal sharing regime.
Binding financial agreements are another problem area. New Zealand agreements are not binding in Australia. And a binding child support agreement entered into Australia is only treated as voluntary in New Zealand. New laws in both countries are being introduced to simplify family law financial issues across the Tasman. Among other things, they will deal with the vexed issue of enforcing family court orders over New Zealand property
Please contact Foulsham and Geddes if you need advice on family law issues of financial claims across the Tasman.
