Question 1: Phillippe v Amanda
Is there a Qualifying Relationship?
The Property (Relationships) Act 1976 (the Act) is concerned with the division of property of married couples like Phillippe (P) and Amanda (A), when they separate [s 1C(1)]. The Act applies differently depending on the length of the relationship [s 1C(2)(a)]. Under the Act, their s 2 property will be broadly classified as s 8 relationship property (RP) or s 9 separate property (SP). The Act only applies to RP. However, there are some cases where the courts can make compensatory orders to consider the existence of separate property [ss 15A, 16, 17, 18B, 18C, 20E, 44C and 44F].
Per the facts P and A were married for six years, prior to separation, and as such, the special rules …show more content…
If P and A are unable to, any application to the Court, would need to be made within 12 months from the dissolution of the marriage, unless the Court grants them an extension [ss 24(1)(a) and 24(2)(a)].
Who Has Beneficial Ownership?
To qualify as property under the Act, the owner as defined in s 2 must have a ‘beneficial interest’ in the property, capable of being valued and divided at the time of separation. There needs to be objective evidence about the beneficial ownership of the RP, to confirm that P and A’s beneficial interests, that 26 The Drive is not owned by a trust or company, and that no other parties have beneficial interests in the property. Suitable evidence would be the certificate of title [ss 2 and 2F].
Other Missing Information
The facts are silent on whether there are any children of the marriage. In providing advice to A, it has been assumed that there are no children. This needs to be clarified. There is no information as to whether there is a mortgage on 26 The Drive, it has been assumed that there is no …show more content…
Section 2 states that the FH is the dwelling house (DH) that either or both spouses use habitually as the only or principal family residence, together with land, buildings or improvements which are used solely for household purposes. In the present case, P and A live in Unit 2 of 26 The Drive, which has a backyard attached. Unit 1 is the bakery which is not the FH, unit 2 is FH.
The Court in De Malmanche v De Malmanche [2002] 2 NZLR 838 (HC) held in determining whether a property is the FH the inquiry focuses on the use of the dwelling, s 2H, rather than the source of funds with which it is acquired. However, it might be helpful in this case to note that the only residential property mentioned in the facts is Unit 2, The Drive (Unit 2). Unit 2 was purchased by P before the relationship began. Before the relationship A had no assets and very little money. Unit 2 represents a large portion of P’s assets that would have remained SP, had they not become RP because of how they were used during the
Is there a Qualifying Relationship?
The Property (Relationships) Act 1976 (the Act) is concerned with the division of property of married couples like Phillippe (P) and Amanda (A), when they separate [s 1C(1)]. The Act applies differently depending on the length of the relationship [s 1C(2)(a)]. Under the Act, their s 2 property will be broadly classified as s 8 relationship property (RP) or s 9 separate property (SP). The Act only applies to RP. However, there are some cases where the courts can make compensatory orders to consider the existence of separate property [ss 15A, 16, 17, 18B, 18C, 20E, 44C and 44F].
Per the facts P and A were married for six years, prior to separation, and as such, the special rules …show more content…
If P and A are unable to, any application to the Court, would need to be made within 12 months from the dissolution of the marriage, unless the Court grants them an extension [ss 24(1)(a) and 24(2)(a)].
Who Has Beneficial Ownership?
To qualify as property under the Act, the owner as defined in s 2 must have a ‘beneficial interest’ in the property, capable of being valued and divided at the time of separation. There needs to be objective evidence about the beneficial ownership of the RP, to confirm that P and A’s beneficial interests, that 26 The Drive is not owned by a trust or company, and that no other parties have beneficial interests in the property. Suitable evidence would be the certificate of title [ss 2 and 2F].
Other Missing Information
The facts are silent on whether there are any children of the marriage. In providing advice to A, it has been assumed that there are no children. This needs to be clarified. There is no information as to whether there is a mortgage on 26 The Drive, it has been assumed that there is no …show more content…
Section 2 states that the FH is the dwelling house (DH) that either or both spouses use habitually as the only or principal family residence, together with land, buildings or improvements which are used solely for household purposes. In the present case, P and A live in Unit 2 of 26 The Drive, which has a backyard attached. Unit 1 is the bakery which is not the FH, unit 2 is FH.
The Court in De Malmanche v De Malmanche [2002] 2 NZLR 838 (HC) held in determining whether a property is the FH the inquiry focuses on the use of the dwelling, s 2H, rather than the source of funds with which it is acquired. However, it might be helpful in this case to note that the only residential property mentioned in the facts is Unit 2, The Drive (Unit 2). Unit 2 was purchased by P before the relationship began. Before the relationship A had no assets and very little money. Unit 2 represents a large portion of P’s assets that would have remained SP, had they not become RP because of how they were used during the