Zampino v Zampino [2020] NZFC 2789

Published 13 July 2020

Relationship property division — marriage — date of separation — Property (Relationships) Act 1976, ss 2A & 2D — District Court Rules, sch 2B — T v D [2007] NZFLR 618 — Sullivan v Sullivan [1958] NZLR 912 (CA) — Singh v Singh [2015] NZHC 1314 — O v K [2004] NZFLR 507 — W v H [2002] 3 NZLR 408 (HC) — Lowndes v Lowndes [2018] NZFC 6173 — Heap v Harford [2014] NZFC 7665 — Excell v Department of Social Welfare (1990) 7 FRNZ 239, [1991] NZFLR 241 (HC). This was a reserved judgment to determine the date of separation of the parties for their property relationship division application. The parties had married in 2005 in the UK and emigrated to New Zealand with their daughter in 2009. The mother moved out of the family home with their daughter in November 2018 and claimed this to be the date of separation, whereas the father claimed this had occurred in July 2015 when they moved into separate bedrooms in the house. Section 2A(2) is the relevant provision under the Property (Relationships) Act 1976 (PRA) and provides that a marriage ends (other than by death or dissolution of marriage) when the parties "cease living together as a married couple". The inverse "living apart" is sometimes used in case law but which has the same meaning. Where a married couple is still living under the same roof strong evidence is needed to show that the marriage has in fact ended as a court only has jurisdiction to determine property and other rights once the marriage has ended. The phrases were defined in case law to mean "a physical separation and a mental attitude averse to cohabitation" on the part of at least one party, and where the parties have "ceased to operate as a single unit". The Court was not looking for the "winding down" period, which was common in long-term marriages, but rather the point of legal separation. The parties had shown that they were mutually committed to a shared family life by having emigrated to the other side of the world with their young daughter, leaving relatives and culture behind. They parties shared a home in New Zealand and the father was the sole income earner, paying for all of the family expenses initially from a joint account and subsequently from a separate account. The couple had shared real estate, cars and investment shares, and took no steps to divide their property during the time the father claimed they were separated. The parties struggled in their marriage after emigrating, with the sexual relationship deteriorating; however, the parties still attended parent/teacher interviews and other family events together. The father had also paid the mother's extended family in the UK a visit in 2016 and 2018 and gifts were exchanged. The couple presented to the world as if they were still living together as a couple. The date of separation was deemed to be in November 2018 when the mother and daughter moved out of the family home. Judgment Date: 30 April 2020. * * * Note: names have been changed to comply with legal requirements. * * *