Marsh v Baxter [2019] NZFC 5564

Published 20 October 2020

Relationship property division — Property (Relationships) Act 1976, ss 1, 2, 9, 11, 12, 13, 14, 17 & 18 — Ayerest v C & K Construction Limited [1976] Appeal Cases 160 — Farrimond v Farrimond [2017] 31 FRNZ 291 — Evers v Evers [1985] NZLR 209 (CA) — Rose v Rose [2009] 27 FRNZ 656 — Lemon v Lemon [1997] NZFLR 70 — French v French [1988] 1 NZLR 62; (1987) 4 NZFLR 553 — Harrison v Harrison [2009] NZCA 68. The parties had been in a relationship for around 18 years and worked in a partnership-owned business providing flowers. The partnership was run by the respondent and his late father's estate. Shortly before the parties' separation, the family home was sold and all of the funds derived from the sale went into reducing the debt attached to the partnership. The applicant sought compensation for the absence of an interest in the family home pursuant to s 11A and/or a claim in respect to the respondent's interest in the partnership under s 9A, 17, or 18B. The respondent sought a half share of the relationship property in the applicant's possession. The court found that at the the time of separation, days before the sale, the property remained the family home but as there was no intention to to acquire another home s 11A did not apply, however s 11B did and the issue for the court was what relationship property was available from which an award may be made for any compensation for absence of the interest in the family home. The proceeds from the sale of the family home had been used to pay off debt related to the respondents business. Unfortunately the partnership had been run at a deficit and winding it up would not provide any money to be awarded to the applicant. There was no way to quantify the amount owed to the applicant or to enforce payment. The only possible outcome was that the applicant was entitled to retain the relationship property currently in her possession. Judgment Date: 18 July 2019.