Simpson v Snow [2020] NZFC 358

Published 11 November 2021

Relationship property division — contracting out agreement — admissibility of evidence — non-complying agreement — legal advice — costs — Calderbank offer — Property (Relationships) Act 1976, ss 13, 21 & 40 — Evidence Act 2006, ss 9 & 72 — Family Courts Act 1980, s 12A — Family Court Rules 2002, r 207 — Jack v Jack [2014] NZHC 2502 — M v A [2006] NZFLR 441. The parties were in a dispute over the division of their relationship property following the end of their five year marriage. The respondent argued the applicant was not entitled to the family home as she had signed a contracting out agreement (COA). The applicant said the agreement was not valid, and sought equal division. The Property (Relationships) Act (the PRA), creates a presumption that relationship property is to be divided equally. Section 21 allows people to "contract out" of this statutory presumption and organise their relationship property as they wish, as long as it is in writing, signed and with independent advice (s 21F). A court may give effect to a contracting out agreement that does not satisfy these requirements if it is satisfied the non-compliance has not materially prejudiced the interests of any party to the agreement (s 21H). There were signed and witnessed paper copies of the COA, but neither party had sought legal advice. As the COA did not comply with the PRA requirements the onus was on the respondent to show that the applicant had not been materially prejudiced. The respondent failed to show this, as the terms of the agreement were unclear, the applicant was retroactively signing away her rights, would lose a 50 per cent entitlement, and had done so at stressful time (during separation) with no legal advice. The family home and all chattels were to be divided equally between the parties. The applicant also sought costs as she had made a Calderbank offer for that outcome which the respondent rejected. Had he accepted it the parties would not have had to come to Court. The Judge awarded costs of $9,940 plus the appearance at hearing of $995 and disbursements of $715. Judgment Date: 17 January 2020. * * * Note: names have been changed to comply with legal requirements. * * *