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Ling v Booth [2020] NZFC 6039

Published 19 May 2021

Application for relationship property division — relationship of short duration — serious injustice — contribution of parties — clean break principle — postseparation contributions — Property (Relationships) Act 1976, ss 14A, 14B & 16B — Child Support Act 1991. This was an application for the division of the parties' relationship property. At issue was the length of the relationship, and the relationship property for division in the event that the Property (Relationships) Act (PRA) applied. The applicant claimed the parties had been in a relationship for a two-year period, and the respondent's position was that it had been closer to one and a half years. There was no appearance or evidence filed by or for the respondent, and the Judge was able to rely on the evidence adduced by the applicant unless that evidence was clearly untenable. The Judge concluded that the relationship began when the applicant claimed it had, but it was still a relationship of short duration. Under s 14A of the PRA, an order for division of relationship property cannot be made unless a court is satisfied that there is a child of the relationship, or that the applicant made a substantial contribution to the relationship; and that failure to make an order would result in serious injustice. The parties had a young child together who was in the care of the applicant. An advance of $230,000 had been made from the applicant's mother to buy the family home, for which a debt of $584,408 was still owing to the bank. If the Court found that the provisions of the PRA did not apply, then the applicant would be liable for the loan to her mother as it would not be classed as relationship debt pursuant to the PRA. The Judge concluded this would result in a serious injustice to the applicant and, as such, was satisfied that the PRA provisions should apply. The relationship property pool for division included the equity in the family home, chattels, two motor vehicles, the contents of the parties' bank accounts, and the parties' KiwiSaver balances (although it was unclear what constituted the relationship portion of these), balanced against the liability to repay the applicant's mother's loan. Pursuant to s 14B, the property should be divided according to the parties' contributions. The Judge concluded that the contributions were unequal to the extent that the applicant had day-to-day care of the parties' child and that therefore a 60/40 division in favour of the applicant was appropriate. The Judge ordered that the applicant was to retain the family home, the chattels, her car, bank account balance, and KiwiSaver, which would leave her with nil equity. The respondent would retain his bank account, car, and KiwiSaver. On this basis the respondent would have $26,000 to $30,000 in asset value. The Judge therefore also ordered $16,800 be paid by the respondent to the applicant. Post-separation contributions were also sought by the applicant as she had been making repayments on the mortgage and paid the rates for the property. Given that she had also been living in the property and retained the benefit of the mortgage repayments, the Judge concluded it was not appropriate to require the respondent to make any further payments on his apparent limited means, and declined to make a post-separation contributions order. Costs were reserved. Judgment Date: 30 July 2020. * * * Note: names have been changed to comply with legal requirements. * * *