Do I Get Half The House
Am I Entitled to Half the House If We Separate? An Auckland Family Lawyer Explains
One of the first questions I hear from clients who are separating is, “Do I get half the house?” As an Auckland family lawyer, I can tell you the short answer is: often yes, but not always. Whether you are entitled to half the family home depends on the type of relationship you were in, how long it lasted, and how the property was used. This article explains how relationship property is divided under New Zealand law.
The Law That Governs Property Division After Separation
In New Zealand, the division of property when a couple separates is governed by the Property (Relationships) Act 1976. It applies to married couples, civil union partners and de facto partners. The Act is designed to achieve a fair division of relationship property when a relationship ends, whether by separation or death.
A common misconception is that you must be divorced before property can be divided. That is not the case. You can apply to the Family Court for a property division after you separate, and you do not need to wait for a dissolution of marriage or civil union.
Does the Act Apply to De Facto Relationships?
Yes. A de facto relationship is one where two people live together as a couple. The Act generally applies where the relationship lasted three years or more. In some circumstances it can also apply to shorter relationships, for example where there is a child of the relationship or where one partner made a substantial contribution and would otherwise suffer serious injustice.
The General Rule: Equal Sharing of Relationship Property
For relationships lasting three years or more, the starting point under the Act is equal sharing of relationship property. This applies regardless of who earned the income, whose name is on the title, or who paid the mortgage. The law recognises that contributions to a relationship take many forms, including earning income, raising children, running the household and supporting a partner’s career.
So if you are in a relationship of three years or more and the house is relationship property, you will usually be entitled to half of its value, after any mortgage is taken into account. That said, “half the house” really means half of the overall pool of relationship property. The pool includes the family home, family chattels, vehicles, bank accounts, KiwiSaver and other investments, businesses and debts.
Why the Family Home Is Treated Specially
The family home is one of the most significant assets in a property division. Under the Act, the family home and family chattels are generally treated as relationship property, even if only one partner owns it or paid for it. This surprises many people.
What If I Owned the House Before the Relationship?
If you bought the home before the relationship began, but the two of you then lived in it as your family home, it will usually still be classified as relationship property. This is because the Act focuses on how the property was used, not only on who acquired it first.
There can be arguments about the value of any contribution you made before the relationship started, and the Court can take this into account in some cases. Early legal advice from an experienced family lawyer is important if you are in this situation.
What About Property Held in a Family Trust?
Many Auckland couples hold their home in a family trust. A trust does not automatically protect an asset from a property claim. The Family Court has powers to look at trusts and, in appropriate cases, to make orders where a transfer to a trust has defeated a partner’s rights or where trust property is effectively relationship property. These cases can be complex and need specialist advice.
Separate Property: What Is Not Shared
Not everything is divided equally. Separate property generally includes:
- Property owned before the relationship that was not used for family purposes
- Gifts and inheritances received by one partner
- Property acquired after separation
- Certain trust interests and property covered by a valid agreement
However, separate property can become relationship property if it is mixed in with the family’s finances or used for the benefit of the family. For example, an inheritance used to pay down the mortgage on the family home may change how that money is treated. This is why careful analysis is needed before assuming an asset is safe.
When Might You Not Get Half?
Relationships Shorter Than Three Years
For shorter relationships, the equal sharing rule does not automatically apply. Instead, property is generally divided according to each partner’s contributions to the relationship. The Court looks at the contributions each person made, both financial and non-financial.
Extraordinary Circumstances
Even in longer relationships, the Court can depart from equal sharing in rare cases where there are “extraordinary circumstances” that would make equal sharing repugnant to justice. The threshold is high. A bad separation or poor behaviour is not enough, and the Court does not usually divide property to punish a partner.
Agreements Between Partners
Couples can make a written agreement about how property will be divided, often called a contracting out agreement or prenup. To be binding, each partner must receive independent legal advice and the agreement must meet the formal requirements of the Act. If you signed something before or during the relationship, we should review it carefully to see whether it is enforceable.
What Steps Should I Take After Separating?
If you are separating, these are sensible first steps:
- Get legal advice early. Before you move out, sell anything or sign any document, speak to a family lawyer about your rights.
- Gather financial information. Collect mortgage statements, bank records, KiwiSaver balances, tax returns, trust documents and valuations.
- Try to negotiate. Most property matters settle by agreement, saving time, cost and stress. Mediation is often an effective option.
- Record any agreement properly. A formal settlement agreement, with each party receiving independent legal advice, gives certainty and protects you later.
- Apply to the Family Court if needed. If you cannot agree, the Court can decide how relationship property is divided.
It is also wise not to leave things for too long. Delay can complicate valuations and may affect your options.
Frequently Asked Questions
Do I lose my share if my name is not on the title?
No. Being left off the title does not mean you have no claim. Ownership on paper is not the deciding factor when it comes to relationship property.
Can I stay in the family home after separation?
Sometimes. The Court can make orders about occupation of the family home, particularly where there are children. This is separate from the question of who ultimately owns the property.
What happens to the mortgage?
The mortgage is a relationship debt and is taken into account when working out the value of the family home. If one partner wishes to keep the property, they will usually need to buy out the other and arrange finance in their own name.
Speak to an Experienced Family Lawyer
Every separation is different, and the right outcome for you depends on your particular circumstances. If you are looking for an Auckland family lawyer who can explain your rights clearly and guide you through property division under New Zealand law, I would be glad to help.
Contact family law expert Naomi Cramer at Cramer Law to discuss your situation. Consultations are available by phone, email or Zoom for clients throughout Auckland and New Zealand.
Disclaimer: This article is general information only and is not legal advice. It does not take into account your personal circumstances, and the law may change. You should obtain independent legal advice before acting or relying on any information in this article. No lawyer-client relationship is created by reading this article.
Republishing: You are welcome to republish this article, provided it is reproduced in full and all links, including the link to Cramer Law, are retained.
