“It’s Simple”: De-bunking the myth of a “simple” family law matter

For some people “family” is where you belong; it is the people who really know you and love you anyway. For others, “family” can mean fear, hurt or complication. For many of us, our families and relationships can feel complicated and filled with nuanced experiences that only we truly understand.

Although our relationships are some of the most personal parts of our lives, lawyers are often needed to assist with aspects of family life. It may be to set up Wills and Enduring Powers or Attorney, enter into a Contracting Out Agreement, seek advice on a separation, divide relationship property, sort out child care arrangements or seek protection from an abusive partner.
Despite what a quick Google search may have you think, most family law matters are far from straightforward. In family law, there are numerous pieces of legislation and cases that determine our legal processes (both in and out of Court) and the substantive law. As lawyers, we decipher these two complexities, your family life and the legal structures that we work within, to find the most effective options and solutions for you. Although it is our job to guide you through these options and to make the process seem as clear as possible, there are often misconceptions around how “simple” some legal matters really are.

So, let’s de-bunk some commonly heard myths:

“My Will is simple”. Your Will instructs how your estate is to be distributed after you die. Part of our job is to draft your Will to reflect your unique wishes and to meet specific requirements under the Wills Act 2007. If your Will is wholly or partly invalid, your estate will be deemed intestate. Wills become more complex for those with blended and extended families, current and ex-partners, life-interests and trusts, as this may leave them open to be challenged in the future.

“I just need a lawyer to sign off on my contracting out agreement” . Under the Property (Relationships) Act, a contracting out agreement will be void unless it is witnessed by a lawyer who certifies that they have explained the effect and implications of the agreement. This means that before we can “sign-off” on an agreement, we must know your particular circumstances, have valuation evidence and have given you full and frank advice. We will also advise on the wisdom (or otherwise) of entering into the agreement.

“We want to split the family home 50/50 – it’s in our family trust”. When the family home is owned by a Trust it adds several layers of complexity to any division of relationship property. Property can only fall subject to the Property (Relationships) Act if it is owned by the spouses or partners personally. The general rule, with few exceptions, is that no Trust assets or liabilities are classified or divided as relationship property as a Trust is a separate legal entity.
Rest assured, even with a few myths debunked, we are here to help you through the sometimes unfamiliar and daunting family law process.

Schnauer & Co, 1 Shea Terrace, Takapuna
09 486 0177 www.schnauer.com

Issue 114 October-November 2020