WX v XX  NZFC 11250
Published 01 June 2021
Severance — relationship property — whether qualifying relationship — marriage of short duration — Property (Relationships) Act 1976, ss 2A, 2B, 2E, 9A, 12, 14, 17, 18, 18B, 44 & 44C — Evidence Act 2006, s 50 — Oranga Tamariki Act 1989, ss 14 & 67 — District Court Rules 2014, r 14.8 — Mahoney v Mahoney  NZHC 2822 — Drummond v Townsend (2011) 28 FRNZ 368,  NZFLR 867 — Kortegeast v Bradley  NZFC 888.
This hearing was to determine an application for severance in relation to the parties' dispute under the Property (Relationships) Act ("PRA").
The respondent sought a direction that the Court hear the issue of whether the parties had been in a qualifying relationship. The parties had been married but the respondent argued that the relationship had been one of short duration pursuant to s 2E(1). They had one child together. The potential property pool included a half share in some land owned by the respondent and a family member.
The applicant claimed that the parties had been together for eight years, and lived together at a house owned by the respondent. The respondent submitted that the parties never "lived together" at the house, but rather that he lived nearby with another family member.
In considering an application for severance, the Court had to consider whether there would be difficult demarcation questions between the issues to be determined at the first and second hearings; whether the proceedings would be brought to an end; potential timesaving; how appeals would be dealt with; and any other practical considerations.
In relation to the demarcation consideration, at issue was whether the parties had ceased living together. Pursuant to s 2A, for the purposes of the PRA, a marriage ends if the parties cease living together as husband and wife. The Judge found there was an arguable possibility that the parties never entered into a qualifying relationship, but if they did it would not be one of short duration. If there was a qualifying relationship, the issues to be determined at a second hearing would focus on issues under ss 9A (separate property becoming relationship property), 17 (sustenance of separate property), 44 and 44C (dispositions of property to a trust).
The qualifying relationship issue was therefore a discrete issue. If the parties were found not to have been in qualifying relationship, then no second hearing would be needed. This would result in significant time and cost savings. Even if the parties were found to have been in a qualifying relationship, the first hearing would determine the commencement and end dates of the relationship, simplifying the issues for determination at a second hearing.
With regards to potential appeals, the applicant was legally aided, which meant any appeal would be carefully considered by the legal services agency. The respondent was capital rich but income poor, with a half-interest in a small business. The likelihood of an appeal was low.
The Judge concluded that the balance fell in favour of ordering separate hearings. The respondent's application for a severance was granted.
Judgment Date: 19 December 2020.
* * * Note: names have been changed to comply with legal requirements. * * *