M v H - [2017] NZHC 2385

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-318 [2017] NZHC 2385

UNDER the Family Proceedings Act 1980

IN THE MATTER

of the Property (Relationships) Act 1976

BETWEEN

M Appellant

AND

H Respondent

Hearing: 11 July 2017

Counsel:

T J Rainey for Appellant
S Jefferson QC for Respondent

Judgment:

29 September 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 29 September 2017 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Rainey Law (Auckland) for Appellant
Haigh Lyon (Auckland) for Respondent

M v H [2017] NZHC 2385 [29 September 2017]

Introduction

[1] On 27 June 2000, Ms M and Mr H entered into a Deed of Agreement as to Present and Future Property. The two had been living together in a de facto relationship since 15 November 1998 and they wished to record by means of the Deed:

F“… their agreement in relation to the status, ownership and division of property now owned and hereafter acquired by them and each of them and, to the extent provided, to contract out of those rules or principles of law (statutory or otherwise) which would or may otherwise now or in the future govern their relationship and the ownership and division of property in relation to each of them”.

[2] The Deed was intended to continue to apply if the two married, which, on

26 April 2008, they did.

[3] In August 2014, Ms M and Mr H separated. Ms M brought proceedings in the Family Court seeking orders dividing relationship property. An important component of the current disagreement between the parties is whether approximately
$1,000,000 held in bank accounts in the name of Mr H is his separate property or relationship property subject to the Property (Relationships) Act 1976 (PRA). That issue was adjudicated as a preliminary point by Judge GS Collin.1

[4] Ms M’s arguments were:

(a) The Deed was not made in contemplation of marriage.2

(b)The Deed, being one which was entered into when the parties were a de facto couple, ceased to have effect when they married.

(c) If, notwithstanding (a) and (b), the Deed survived the marriage and continued to have effect, its proper construction makes the bank
accounts relationship property.

1 [M] v [H] [2016] NZFC 10609.
2 Section 21(1) of the Matrimonial Property Act 1976, in force when the Deed was entered into, provided that a couple contemplating marriage could contract out of the provisions of that Act.

[5] Judge Collin decided:3

(a) The Deed was made in contemplation of marriage.

(b) Even if that were wrong, the Deed was valid pursuant to ss 21R and

21P of the PRA and, notwithstanding the marriage, continued to have effect.

(c) On a proper…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading M v H

Details

AGLC: M v H [2017] NZHC 2385
Case: [2017] NZHC 2385
Decision Date: 29 September 2017

CaseChat Overview and Summary

Ms M and Mr H, who had been in a de facto relationship since 1998, entered into a Deed of Agreement in 2000 which purported to govern the division of property in the event of a separation. The parties married in 2008 but separated in 2014. Ms M brought proceedings in the Family Court seeking orders dividing relationship property. The key issue was whether approximately $1,000,000 held in bank accounts in Mr H's name was his separate property or relationship property. Judge Collin had found that the Deed was valid, but the funds in the accounts were Mr H's separate property. Ms M appealed this decision, arguing that the Deed was not valid as it was not made in contemplation of marriage and did not survive the marriage. Mr H cross-appealed, arguing that the funds in all the accounts were his separate property. The court found that the Deed was not a valid contracting out agreement under the Matrimonial Property Act 1976, but it was a valid contracting out agreement under the Property (Relationships) Act 1976. The funds in the accounts were Mr H's separate property. The appeal was dismissed and the cross-appeal allowed.

Orders