Luyk v Luyk [2020] NZFC 1253

Published 21 December 2020

Interlocutory decision — relationship property division — occupation order — tenancy order — interim spousal maintenance — legal and accounting costs — contracting out agreement — Property (Relationships) Act 1976, ss 21, 27, 28 & 32 — Family Proceedings Act 1980, ss 63, 64 & 82 — Owen v Thomas [2014] NZHC 2200 — Ropiha v Ropiha [1979] 2 NZLR 245 (CA) — Cornell v Cornell FC Auckland FAM-2015-004-810, 24 March 2016 — Hohaia v Caldwell [2019] NZHC 102 — Hodson v Hodson [2012] NZFLR 252 (HC) — Dalrymple v Dalrymple [2019] NZHC 637 — C v G [2010] NZCA 128, [2010] NZFLR 497 — Clayton v Clayton [2015] NZHC 550 — A v A (Maintenance Pending suit: payment of legal fees) [2001] 1 WLR 605 (Fam D) — Biggs v Biggs FC Queenstown FAM -2017-059-000011, 23 August 2017 — DCK v RK HC Auckland, CIV-2009-404-4421, 20 November 2009 — GCH v SMH [2014] NZHC 211, (2014) 29 FRNZ 727 — Rangi v Rangi, FC Oamaru, FAM-2010-045-11, 17 February 2010. This hearing was to determine whether the quantum of interim spousal maintenance to be paid to the applicant by the respondent under the Family Proceedings Act (the FPA). Also at issue was whether a tenancy or occupation order should be made under the Property (Relationships) Act (the PRA) in respect of the family home. Under s 82 of the FPA the Court has an unfettered discretion as to whether an award should be made and as to quantum. The main considerations are: the reasonable needs of the applicant over the period for which the order would subsist; the means available to the applicant to meet those needs; the respondent’s reasonable means to meet any shortfall and his reasonable needs; the ability of the respondent to be able to meet the reasonable needs of the applicant; and whether the court ought to exercise its discretion to make an interim order and, if so, for how long and on what conditions. The respondent was ordered to pay the applicant interim maintenance of $6900 per month as well as $600 outgoings towards the family home. This accounted for the reasonable needs of the applicant and luxurious lifestyle of the parties throughout their relationship (the respondent had an annual income of over $1.3 million). The Judge declined to order maintenance payments for the applicant's legal and accounting costs as she had the means to pay for those from other sources. After having regard to the applicant's age (60), ill health and inability to work, a nine month tenancy order was made in her favour. At the end of the nine months the parties would have been separated for two years and by then should each be in a position to move on with their lives independent from the other. Judgment Date: 24 February 2020.