Cross v Cook [2020] NZFC 5586

Published 16 February 2021

Relationship property dispute — date of separation — contracting out agreement — independent legal advice — Property (Relationships) Act 1976, ss 21F, 21H & 21J — A v R [2007] 2 NZLR 399 (HC) — Wells v Wells [2006] NZFLR 870 (HC) — West v West (No 2) [2004] NZFLR 164 (HC) — Evans v Evans (1992) 9 FRNZ 614 (HC) — Coxhead v Coxhead [1993] 2 NZLR 397 (CA) — McGill v Crozier (2001) 21 FRNZ 157 (HC) — C v W [2010] HC New Plymouth CIV-2010-443-192, 28 July 2010. This was an application by the respondent for a declaration from the Court giving effect to an agreement between the parties as an agreement contracting out of the Property (Relationships) Act ("the Act"). The parties had been married in 1982 and their marriage was dissolved in 1998. The applicant claimed that the parties had continued a relationship on and off since their divorce before finally separating in 2007; the respondent denied that the parties had rekindled their relationship for that time. They had entered into two agreements, one in 2006 (where the respondent advanced the applicant $20,000) and one in June 2007, where a further $105,000 was advanced. In order for a contracting out agreement to be valid the criteria in s 21F of the Act must be met, namely that: the agreement must be in writing and signed by both parties; both parties must have independent legal advice; the signature of each party must be witnessed by a lawyer; and the lawyer who witnesses the signature of a party must certify that they have explained the effects and implications of the agreement to that party. Neither the 2006 nor the 2007 agreement complied with s 21F; however, the respondent sought to give effect to the 2007 agreement pursuant to s 21H. This section stipulates that an agreement may be given effect if a court is satisfied that doing so would not materially prejudice one party. Case law provides matters to be taken into account when assessing material prejudice, including: compliance with formalities; entitlement under the Act; absence of legal advice; and adequacy of legal advice. The Judge also considered the criteria in s 21J of the Act, and concluded that the lack of compliance with s 21F in the parties' case was not technical or minor. The respondent had not discharged the onus on him to show that giving effect to the agreement would not materially prejudice the applicant. The Judge declined the application to give effect to the 2007 agreement as a contracting out agreement. Judgment Date: 20 July 2020.