April 26, 2026 • 41 mins
Divorce is still one of those taboo topics we tend to avoid, but up to 40% of marriages end that way here in New Zealand, so it's probably about time we become a bit more comfortable with it.
It's not always a hostile end, some couples are even able to "DIY" their split in a sense - but is that really a good idea?
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Speaker 1 (00:05):
You're listening to the Weekend Collective podcast from News Talks.
Speaker 2 (00:09):
It'd be then marriage, love and the marriage.
Speaker 3 (00:14):
They go together like a.
Speaker 2 (00:16):
Horse and carriage. This I'll tell you, brother, you can't
have one without the other of van marriage, love and marriage.
It's an institute you can't disparage. Ask the local gentyally
(00:40):
will say it's ellamntry try try.
Speaker 3 (00:46):
I sort of want to let that roll on. It's
quite a nice little ditty that is not loving marriage,
a bit of a bit of our blue eyes Frank
Sinatra there. Welcome back that the song has some relevance
for this out because if you were listening for the
past hour and I you hit me, just tease ahead. Yes,
this is smart money, Welcome to it. The number is
eight hundred eighty eighty. You can text nine two nine
(01:07):
two and as I say, for smart Money today we're
going to talk about it was either going to be
that song. I think it's is it? She is it? Aretha?
Who's oh no, she's sang ries b E C T.
There's a song called divorce which they spell it out
div o r C. I'm trying to remember whoever it is,
but we'll find out. Maybe a big Tammy. Whyette, Oh
she did stand by your man as well as well
(01:29):
as divos sits. Anyway, so we are talking divorce because
it's look, I don't know if it's a taboo topic
these days, because you know, love and marriage and divorce
and things, and it seem that divorce was trendy at
one stage. I always wondered, or but I don't know
what the trends are, but people are getting divorced, you know, relationships,
(01:49):
you know, you get together and you fall apart and
everything in between. Apparently up to forty percent of marriages
in that way here in New Zealand. Gosh, that's quite
a lot, isn't it. I prefer to think sixty percent
of the marriages last. But anyway, so anyway, if you've
got to do it, we I'm curious to know because
you always always hear about divorce and you think, well,
(02:11):
the lawyers are coming in and it's all over by
the shouting, or maybe the shouting is just about to start.
But anyway, we thought we'd dig into the topic of divorce,
but in particular, and it's somewhight ironic because we have
a guest who is a specialist in this sort of
area of law, and we're going to talk about whether
you can do it without a lawyer. So I'm going
(02:32):
to ask you to argue against her own cause here.
But don't worry. She's quite busy, so she's not looking
for work. But her name is Sharon Chandra. I think
this is your second time Sharon. Anyway, she is a
barrister at bank Side Chambers and she's with us for
Smart Money and Sharon.
Speaker 4 (02:48):
Hello, good evening, Tim, Thank you for having me on again.
Speaker 3 (02:51):
Nice to see you.
Speaker 4 (02:53):
Are you keeping busy, very busy? There's no shortage of
people getting divorced.
Speaker 5 (02:58):
Yeah.
Speaker 3 (02:58):
Now I'll just get you to pull your microphone just
a little closer to you, just for safety safety. I
don't know what I'm talking about, can you. I'm just
going to ask the question straight up? Can you do
a DIY divorce?
Speaker 4 (03:12):
Very interesting question. There's I think there's there's a distinction
between the divorce itself, which is dissolving the marriage.
Speaker 3 (03:20):
It's just like we've been separate for two years pill.
Speaker 4 (03:22):
Exactly, and that is a straightforward process. So you can
diy that. The forms are online on the Ministry of
Justice website. You can dissolve your marriage in a very
straightforward way.
Speaker 3 (03:33):
Wow, there we go. There's this. Actually, there's two things
we should celebrate there. Now I'm going to be very misterieosus,
but I know you know that it's in the spread
of the is that we've got a straight answer from
a lawyer, which you don't often think you're going to get.
But it's all over.
Speaker 1 (03:45):
There we go.
Speaker 3 (03:46):
But it's not. It's about everything that precedes that. It's
around the separation and.
Speaker 4 (03:51):
Well it's the property division. You do need a lawyer
to be involved to finalize your property division, but you
can dissolve your marriage in a very DIY style.
Speaker 3 (04:01):
Wait, so do you you do need a lawyer for
the property divisions simply because we're talking about no no,
no houses and stuff and just transferring title, I.
Speaker 4 (04:11):
Mean need Well, it's more that you can't have a
legally binding agreement dividing your property without a lawyer for
each party signing it off.
Speaker 3 (04:21):
Oh really, absolutely, your.
Speaker 4 (04:23):
Agreement won't be legally binding unless you've had independent lawyers
certify that agreement for you.
Speaker 3 (04:28):
So you can't escape the lawyer.
Speaker 4 (04:30):
You cannot escape us unless you have nothing. Well, even
if you have nothing, it's another.
Speaker 3 (04:36):
Song by the ways, I who have nothing, we'll get
and we'll get tired of load that one up that
should have built that into it. I who have nothing
means I can get divorced for free. Sorry, even if.
Speaker 4 (04:47):
You've got nothing, you want to protect yourself for the
future because you might even though you might have nothing.
Now that may not always be.
Speaker 3 (04:54):
The case, but once you divorce, you if you have
nothing when you divorce, you're probably okay. And I actually
that's a silly thing. I'm being a little bit flippant
because everyone has something in relationships. I mean hard to
imagine people. It's hard to imagine many people literally absolutely.
Speaker 4 (05:08):
I'll give you a scenario. Say you set up a
little business. It's nothing during the relationship, but just it's
their dormant, it's inactive. You think you've got nothing without
any kind of value. You decide on you know, five
years time, you're going to do something with it, and
you build it up.
Speaker 3 (05:23):
Okay, but business that was.
Speaker 4 (05:25):
Created during your relationship. I'm not saying.
Speaker 3 (05:28):
That that you're stuffed.
Speaker 4 (05:29):
That you're stuffed, but it's going to create issues, so.
Speaker 3 (05:33):
So you need the lawyers. So how okay. I think
the more reasonable way for me to frame the question
because deliberately being a bit mischievous and the way we
set it up. But how much can people work out
between themselves on this? And I guess it depends on
whether you are capable of having having an amical, amicable divorce,
which I know a lot of people start that process
(05:56):
they realize they've fallen out of love, and then funny
thing is when property and money gets involved, the intentions
of amicability, if that's the word, can quickly disappear, can't they.
Speaker 4 (06:08):
That's right? I mean, I think that there is space
for negotiating things between yourselves in an amicable way. There's
a space for that, but only after you've gotten some
advice about what you're actually legally entitled to, because then
you've at least got a bottom line from which to
negotiate with. Otherwise you're negotiating without any kind of benchmark
(06:29):
of where you should be or what your actual entitlement is.
And I think that that's part of the danger of
starting to negotiate a property division without fully understanding what
you're legally entitled to, because what you're agreeing to could
be a lot more than what you're actually entitled to
or it could be less, and then it messes with
(06:50):
expectations once people do get legal advice.
Speaker 3 (06:53):
Can divorce be easier? Can divorce be easy? Can separation?
Can dissolving a relationship? And look, we are talking about
the money side of things in the property side. Can
it be easy or is it?
Speaker 4 (07:09):
It can be? It's a spectrum. I mean, some cases
get resolved very quickly. Others take years. I just had
one recently which I'd probably say was my quickest separation
in the history of my career. But that was because
she did a prenup with me, and then it was
very straightforward once the property division came about.
Speaker 3 (07:28):
But the prenup requires probably some legal advice that some
stage you're up for some legal advice. Absolutely, Yeah, it's
it expensive to I mean, I know people who have
quite well off who've separated and everything's cost a fortune,
you know, the cost of what they've had to pay
the other partner or about or something in the legal
(07:49):
fees and all that sort of thing. I mean, but yeah,
is it expensive from a legal point of view or
can you imagine scenarios where we'll look, this is your minimum,
It's not that bad.
Speaker 4 (07:59):
Let's just say the cost of protecting yourself is significantly
cheaper than the costs you're bearing on the other side
of it once you've already separated.
Speaker 3 (08:08):
So your point would be that when it comes to
any relationship, that you are really better off just spending
some money protecting, you know, coming up with an equation
and how things are going to be divvied.
Speaker 4 (08:23):
I think that that's the most prudent way to do it.
But I think that it's easy for me to sit
here and say, but couples do find it difficult to
work through that process. It's not what a prenup, the
prenuptial agreement process.
Speaker 3 (08:37):
Especially because it's so unromantic, isn't it. I mean, whatever
happened to romance and things? And it's it's almost I
could always imagine you'd have. It's almost a personality type
that you'd have to rely on that some there are
some people who can just go, look, I absolutely love
him or her, and I completely understand it needs to happen,
so I'm cool with it. And yet there are other
(08:58):
personality types for whom they've raised the question of if
we split up means they're not there full on lationships
over before it's even started. Because you know that's right.
Speaker 4 (09:09):
That's right. And as you say, I mean, I encounter
lots of different types of couples. I mean the people
who come to me for pre nups, the majority are
people who have already been through a separation before. Those
are the people that are always coming and getting the
pre nups done. Less so the people who into a
(09:29):
relationship with no assets and they build their wealth together.
Speaker 3 (09:34):
That is the interesting one, isn't it. Because I mean,
I'm in my I've got to be careful how I
say this, because and when I say I'm in my
first marriage, I'm not intending to be the first of many.
I did have a friend of mine who used to
jokingly introduce his wife as this is my first wife,
such and such and people just to watch people squirm.
(09:55):
And I remember his wife saying I'm still married to him.
And yes, you know, she did have a good line,
actually said anyone who gets introduced as a first wife
is entitled to start look for a second husband. I
did think that was quite funny.
Speaker 4 (10:08):
I think that's fair.
Speaker 3 (10:11):
But I mean I never would have thought of a prenup.
I know my wife wouldn't have. And look, I'm hoping
and imagining that that's not something that's going to be needed.
But what happens with those the couples who have built
everything from scratch, doesn't mean because they had nothing when
they came together that and they've built their lives up.
(10:33):
They've you know, maybe had children, they bought a house,
they've developed some savings and assets. Is that fairly straightforward
because we're not looking at something that's out of whack
at the starter or is it just look, you guys
are worth a half a million combined. You're gonna have
to spend some money to sort out, you know, and
maybe there'll be something left up for once you paid
the fees.
Speaker 4 (10:53):
I mean that there are always there are always issues
that need to be iron It's never as straightforward. Yes,
fifty to fifty sounds straightforward on paper, but there's always
little quirks to each case as to exactly kiwish over
how that takes place. And I mean economic disparity. The
section fifteen thing seems to be a big one. Long marriage,
as they've had children, one person takes time off from
(11:15):
work or their career to care for the children, and
the person who's continued to work is essentially required to
pay some form of compensation. I mean in a long
marriage where they've built their assets together, that's probably traditionally
your main issue or the most significant issrue.
Speaker 3 (11:32):
Look, we've loved your cause, by the way, if you've
got any questions around it, and look, I know that
when it comes to divorce, you know, it's a difficult
one to talk about publicly. So you actually might just
simply know someone who's a friend who you're trying to
get some advice for. We'll treat everything as asking for
a friend, even if it's not you. But if you've
got any calls and you've got any questions around it,
(11:53):
because it also might be the case you're in an
absolutely happy relationship and or you're entering a relationship you
want to protect your assets. If you want to pick
Sharon's brains, she's an expert expert and divorce. What's the
word for what you do?
Speaker 4 (12:09):
Well, I call it relationship property because my expertise is
in the property division when people separate.
Speaker 3 (12:15):
If you've got any questions, we'd love to hear from you.
On eight hundred and eighty ten eighty How actually, how
of course, if you've got children together, do you get
involved in that side of things as well as a
relationship property lawyer, because when people are separating the question
of access and who's got the children, that's I'll be honest.
(12:36):
When I practice law, briefly, I never went anywhere near
the family law cases because I considered I still just
I didn't have a clue about relationships myself, so I
stayed clear of it. But that's also is that something
that can be worked out between it?
Speaker 6 (12:50):
Is?
Speaker 4 (12:50):
It is? That's a completely different kettle of fish from
a legal point of view. That is something that can
be worked out without lawyers if it's amicable, when everyone agrees,
you don't need to have a lawyer on to get
that sorted.
Speaker 3 (13:06):
But is that what the family court can? You can
have mediations and mediation process.
Speaker 4 (13:11):
Yep, that's right. And I mean if you are having
difficulty talking, I mean I don't do this kind of work,
so I really underdo the relationship property But.
Speaker 3 (13:20):
A lawyers often would only I mean, you'd only often
get a lawyer involved if you want some to sort
of hold your hand from a support point of view
in a way, wouldn't you just have someone in there
with you before?
Speaker 7 (13:28):
Right?
Speaker 4 (13:28):
Or you're having difficulty negotiating it yourself or having the
discussions yourself, because I mean, let's be honest, when you're
dealing with children, the emotions are probably running a bit
higher than when you're talking about the property side of things.
Speaker 3 (13:40):
So yeah, right, we want your cause. On eight hundred
and eighty ten and eighty Sharon Chandra is my guess.
She's a barrister at Bankside Chambers. She's a relationship property lawyer,
and I asked by whether you could do the DII divorce.
You can do the dissolution, certainly, but the property, no,
you can't really do it without getting some legal advice
(14:01):
and support in there. But what if you managed to
do yourself. If you've got questions for Sharon, give us
a call. On eight hundred and eighty ten eighty we've
got Brad on Hobbit. Brad, I'll just ask you to
stay there because we're going to take a quick break
and we'll be back into it straight after this. This
is news Talk, said B twenty one past five. Yes,
welcome back. We are with the Sharon Chandra and we're
discussing look at is It's a difficult topic for many people.
(14:23):
No one who enters into a loving relationship, wants it
to fall apart. You want to go forever, but sometimes
it doesn't. So can you do it yourself? And when
do you know? You got any questions for? Sharon Chander
who's our expert and she's a lawyer barrister at Bankside
Chambers with specialty and relationship property discussions. Shall we call
it and let's go to Brad. Hello, Brad, Hi, how's
(14:46):
it going good? Thanks?
Speaker 8 (14:49):
Yep? So so actually this is actual for a friend.
Just to be clear, I'm heavily married of seventeen years.
Just to guest, thank you, so actual for a friend
he's been. I'll take a bit of a picture for you,
and then a little bit advice passed on of the
ideal he's been in there. It just came out of
(15:09):
a relationship about two and a half years. But she
has not moved out of the house. They say that
that she says that they're just friends and she's just
going to stay there until she finds another home. What
I'm noticing and what I have no one over the
last two and a half years, she's been no good
for him to begin with, and but he doesn't seem
(15:31):
to know how to get her out or I think
she's going to he owns the house.
Speaker 3 (15:36):
Sorry, they've gone from lovers to flatmates?
Speaker 5 (15:39):
Is that?
Speaker 8 (15:41):
And he owns the property, he's working. She's never word
she's always just lived off him, and I'm the concern
for him and he doesn't want to listen too much
that in six months time it could be a different story.
Is that? So I know that they've separated, But what
kind of stand she has to say that in six
months time when it becomes three years, even though they've
(16:03):
been separated for six months.
Speaker 3 (16:06):
Cool Brad, this is a really one.
Speaker 4 (16:08):
I mean, your friend needs to take some action now,
because the last thing you want is for there to
be some kind of assertion that the date of separation
occurred after that three year mark, because that's just going
to change the entire game. So your friend needs to
needs to take some action on this and urgently and
get her to move out. I mean, if it's less
than three years, then it's just your your civil law regime,
(16:31):
and so he can get her trespassed from the property
if he's the legal owner of the property, and that
he's got to have the bulls to do that.
Speaker 8 (16:39):
Right, that's the word right there, right, which yes, Cajones. Yeah,
so okay, what if I've thought I've got a text
message him telling me that they've separated, but she's staying
in the house and talk about it.
Speaker 3 (16:55):
And I can tell you that that's not good enough,
and Sharon, it's going to ye.
Speaker 4 (16:59):
No, he needs to do something more than that, because
she it sounds like she maybe that's why she's staying
in the house. Maybe maybe that's why she's not moving
out because she wants that three year mark to pass.
Speaker 3 (17:09):
Whoa and she and then after that there's a presumption,
isn't there sharing a fifty percent starting.
Speaker 4 (17:15):
Point will be fifty percent?
Speaker 8 (17:16):
Yeah, that's a shame is worth hard for that?
Speaker 3 (17:18):
Okay, well, can I just ask how No, and I
did have a question there. It's completely abandoned me for
a moment. But has oh, that's what it is. Has
he accepted and I think this is the big question,
and has he accepted that the relationship is over or
you sort of like, mate, I don't think you've worked
(17:39):
out the relationship is over.
Speaker 8 (17:42):
Now he has? Is of just yesterday ashually, I was
doing some firew with with them. Man, I was trying
to pull some sense on them. But he's very much
like it's definitely over, but she's just waiting to find
another house. I'm like, maybe I don't think.
Speaker 3 (17:56):
Okay, well, you've done him a favor by calling up.
You should get him to listen to us back on
demand at about just after twenty past five. Because that
is yeah, now, thanks for your cool Brad. That's actually
that is I have. That's not the first time I've
heard of people who have split up and they're funny enough.
They might have gone from being flatmates to being lovers.
(18:17):
And there's a big trap with that whole cohabiting thing,
isn't that There.
Speaker 4 (18:21):
Is, Especially relationships that start out as flatmates and then
turn into something more romantic. There is always an issue
about when did the de facto relationship actually commence? When
does that three year period start running.
Speaker 3 (18:33):
Yeah, so if you are flatting with someone and you
own the house and there your flatmate and you fall
in love, you probably need to get some relationship advice
pretty quickly. I've got a technical question on that. Could
it if let's say that Brad's friend is that he
actually doesn't have any ex to grime with his ex
(18:55):
now and she's in the house, could it ever be
envisage that he could say to a judge, Look, I
need you to give us a ruling that we are
split up, but I don't mind he' staying on as
a flat mate or is it just going to be
mate and she's got to get out.
Speaker 4 (19:11):
I mean, it is possible to get a ruling from
the court on it. Whether it needs to get to
that stage or not is probably questionable. But I mean
with her, he's always going to have a risk if
she's still living under the same ruth because things like
text messages and what you say to each other.
Speaker 3 (19:29):
Actually you could argue we're back on again.
Speaker 4 (19:32):
Well exactly, and it doesn't actually matter what you say.
It's what your actions show, it's what your conduct is,
and that's the way that it's assessed.
Speaker 3 (19:39):
Now, how quickly, how quickly, realistically, can this person take
the right action they need to do to protect themselves
in terms of picking up the phone and actually getting
it resolved. So it's not okay, we're another four months
down the track.
Speaker 4 (19:55):
I mean, all he would need to do is go
and see a lawyer, get them to write a letter
to her saying you separated, you need to move out.
Here's the date. Otherwise we're going to serve a trespus
notice on you. It's very harsh.
Speaker 3 (20:06):
I know it is harsh, isn't it. But there's no
other that's it, doesn't it. It's what we're getting into
harsh territory.
Speaker 4 (20:12):
Out Well, otherwise, I think that he's gonna have some risks.
Speaker 3 (20:15):
I mean, well, if he's got the house, let's say,
let's just make a figure up that he's got some
equity in the he's worked for it, but he's still
got a mortgage. He could easily have easily have half
a million a million bucks in equity. I guess you've
got to say to him, Okay, well it's four hundred
thousand or five hundred thousand dollars worth being nice.
Speaker 4 (20:35):
That's right. I mean, in some cases, if you're just
over that three year mark, then even though you've got
the starting presumption of fifty percent, it's still a very
strong but you've got to pay lawyers to negotiate that.
It's not your presumption. It's not the starting point. It
becomes a whole. That's another kittle of fish witch.
Speaker 3 (20:53):
I'll tell you what that would. There's there's the makings
of a great family law exam question and there isn't.
Speaker 4 (20:59):
That it sounds like it doesn't.
Speaker 3 (21:00):
It looks like a straight straight out of an exam paper.
But for real, well, and yeah, hey, thanks for call Brad.
Good on you. Let's go to Darren.
Speaker 5 (21:08):
Hello, Hey, good atim and Sharon?
Speaker 3 (21:11):
How are you excellent?
Speaker 4 (21:12):
Darreon?
Speaker 5 (21:14):
Hey, I couldn't turn the phone on at the radio
and at a good time because I've got a question.
I currently am seeking legal advice, but I just wanted
to run it over a seeking able. So I've got
a pre natural agreement drawn up in two thousand and
eight because of the money I had for the property
was sixty percent of the value. My partner had zero money.
(21:37):
We've since then had a couple of kids. My partner
said to me, your pre natural agreement. All contract in
that agreement is irrelevant now because we've got kids. However,
and so we've purchased an other property, and the contract
very clearly says that will roll over to whatever property
has purchased, And in the contract that says it will
(21:59):
be I will get the money I put back and
or sixty percent value of the houses, which so obviously
my venue in the houses are overdoubled because the contract
was drawn up in two thousand and eight, but the
contract has never been reviewed until we broke up in
twenty twenty five. My lawles seat that can be challenged.
(22:24):
What is your advice of what the possible outcomes may.
Speaker 6 (22:27):
Be on us?
Speaker 4 (22:29):
This is a very tricky situation, Darren. I mean, yes,
these contracting art agreements really do need to be reviewed
regularly over time. The more time that passes where the
agreement hasn't been reviewed, the more likely it is that
it's going to be able to be challenged. And you're
talking about two thousand and eight. There's another property. You've
had two kids, so circumstances have changed quite a lot
(22:51):
since you first signed that agreement. I mean, I would
say that there is probably a strong case to set
it aside. But I think that what that should tell
you is that it's not necessarily that you need to
agree that you disregard the agreement altogether. I think that
there's room to negotiate some kind of settlement there. But
(23:12):
unless you sort of want to end up in court,
you probably do want to do want to come to
the table and negotiate something that's potentially a bit more
than the contracting art agreement, but not completely disregarding what
the contracting art agreement says, because in a case like this,
I think they've probably got quite a good argument that
it should be set aside.
Speaker 5 (23:32):
Yeah, was there anything?
Speaker 3 (23:33):
Can I ask you, Darren? Was there any mention of
what happens with when you have children? Is there any
mention of what the future might entailed?
Speaker 5 (23:40):
No mention of that? Obviously being drawn up to two
thousand and eight, there was. My law has currently said
she would now have review processes, and obviously there was
no no, absolutely, I.
Speaker 4 (23:54):
Mean, Darren that the tricky thing is that back in
the early two thousands, these agreements weren't being challenged or
being set aside as frequently. It's only in the last
decade or so that it's come a lot more prevalent.
And so now the advice that everyone's getting when they're
signing these agreements is to make sure that they're reviewed.
But you potentially wouldn't have got that advice at the
time because it wasn't as prevalent. So it's not your fault.
(24:16):
You didn't do anything wrong.
Speaker 3 (24:18):
But what's what's the vibe between and obviously you know
it is going to be contentious. But is it hostile
or is it just simply like that your ex pointing
out that, well, you know, things have changed, it's not
kind of quite go along those lines.
Speaker 5 (24:33):
Well, it's it's funny you say that because it started
are amicable, it's completely gone the other way. And I
guess the whole thing now is my lawyer has just
dropped the my my ex was completely unaware that this
was anything that was still viable. So the bomb got
dropped a week ago. Justice full response. So it's a
(24:55):
bit of a nervous time. But the advice that has
been has been good. So it's been an interesting case,
I'm assuming from what I'm hearing.
Speaker 3 (25:05):
Oh, well, good luck with that or down your tough time? Yeah, actually,
I mean how obviously Darren's really stressed about it, as
you would be. Do you ever, what advice do you
have for clients who are nervous about the whole thing?
Is there anything you can say to sort of help
(25:27):
them with accepting that. Look, you know they're not going
to get crucified, but it's going to be a tough time,
But do you ever try and can you console them
where you just have to stick to your knitting and go, well,
I'll do my best for you.
Speaker 4 (25:39):
I mean, I honestly think the best way that you
can serve a client is by being straight up with
them about what they're up for and where you think
that they stand legally. And yes, it might be it
might involve dropping a bomb, but I think that that's
the best way that you can arm them to make
the decisions that they that they need to make. I mean,
Darren's situation is very tricky. I mean, he's at the
(26:01):
time he would have thought he did all the right things,
and on paper he did everything right, but he just
didn't get the advice around making sure that it's reviewed.
And now he's in a situation where should a lawyer.
Speaker 3 (26:15):
I'm not trying to be make mischief for the EU either,
but should lawyers if they do do prenuptial agreements? I mean,
I would imagine these days you would say to someone,
here's your prenup, but you need to check in with
me in a few years time.
Speaker 4 (26:27):
Absolutely, I don't think any lawyer is certifying a contracting
art agreement for a client and not telling them that
they need to review it regularly over time.
Speaker 3 (26:34):
Is that negligent? A hot tape. That's a hot It
can be.
Speaker 4 (26:38):
It can be. There are cases where if an agreement
has been successfully set aside and a client should have
been advised that they were to review the agreement regularly,
and they weren't given that advice, or they were given
in correct advice, or they weren't advised about what they
were legally entitled to, so they didn't know what they
were signing up for. There are situations where you've got
(26:59):
negligence cases.
Speaker 3 (27:00):
Okay, slightly, this is shark infested waters then, Because and
I'm sure Darren down still listening. But if the lawyer
who drew up that agreement in two thousand and eight
is acting for him almost twenty years later and he
hasn't heard, hasn't had any dealings with him about the prenup,
I think that. I think it raises questions about whether
you should actually have that lawyer on your side, because
(27:23):
shouldn't shouldn't you? I mean that lawyer might have let
the side down.
Speaker 4 (27:26):
Well, I don't want to get it.
Speaker 3 (27:28):
I don't want to be contentious, but you know, I
just want to have a reasonable discussion around it, you know what.
Speaker 4 (27:31):
I Well, I think because I mean, as I say,
it wasn't as prevalent back in the early two thousands.
Oh so you might, so it might not be negligent
to not have.
Speaker 3 (27:39):
Given where it's advised two fifteen.
Speaker 4 (27:42):
Exactly. Yeah, that's right, dear so, because the advice that
you're giving the client, you change it depending on what
the cases are saying. And back then it probably was
reasonable that you could rely on an agreement, probably more
so than you can now.
Speaker 3 (27:57):
Actually, I'm glad I asked the question because that's that
seems like a common sense answer. It's like, you know,
if you've if you've done the agreement back in a
time when these things were just like you've done the job,
that's the courts respect these agreements. And then ten years later.
Speaker 4 (28:10):
Oops, exactly exactly correctly.
Speaker 3 (28:14):
Look, we're going to take some more another break. We've
got lots of texts to get on with, which you
know is understandable because it's a sensitive area of law.
And Sharon Chandra is my guest. She's a barrister at
bank Side Chambers. And we'll be back and just tack
news Talk, said B. Twenty two minutes to set. News
Talk said B. We're back with Sharon Chandra we're talking
about relationship property and relationships that break up and getting
(28:36):
your advice and calls on this, and callers will always
jump the cure of the texts. So Grant, it's you today.
Speaker 1 (28:42):
Yeah, my call is about the first call, an issue
that the Brad's brought up about his friend. Now, my
situation is I own a freehold house. I'm not in
a relationship at the moment, and obviously the law can
and maybe has changed. But my understanding is if I
(29:03):
get into a relationship, he moves in and then three four,
five years down the track we split up because I
own the house before the relationship started, that she would
have no claim on that.
Speaker 8 (29:16):
Is that not correct?
Speaker 4 (29:17):
That is absolutely not correct, Grant. If you own the
house personally and that's the home that the two of
you live in, if you live there for three years
or more, then it is going to be shared equally.
Speaker 3 (29:28):
Yeah, okay, Well have you got someone we don't know about, Grant?
Speaker 4 (29:35):
No?
Speaker 1 (29:35):
Well, like I said, I'm not in a relationship at
the moment, but always like to be repaired because.
Speaker 4 (29:41):
Well I need a prenup. Once before you get someone
to move in, or even shortly after they've moved in,
just make sure you do your prenup agreement.
Speaker 1 (29:50):
Yeah, because the problem is the courses you fall in
love with someone, you think it's gonna last river, and
it doesn't. Love the next person, it's gonna last river,
and it doesn't.
Speaker 4 (30:00):
I mean, I'm not I'm not saying that every person
you date you need to get them to sign the prenup.
It's only if it gets serious enough that you're thinking
about wanting them to move in and live with you.
Speaker 3 (30:10):
Yeah.
Speaker 1 (30:11):
Yeah, yeah, so as long as it's done before the
three years is up.
Speaker 4 (30:16):
I usually say no later than you, No later than
you've been living together for eighteen months. No later than that.
Don't start the process any later than that.
Speaker 1 (30:25):
Yeah, because obviously you don't want to ask, but a lady,
you want to go out on the date, let's have
a prenup.
Speaker 3 (30:32):
No. But but actually that's an interesting one. Thanks for
asking that, mentioned raising that grant, because my gut reaction
would be, and everyone will have their own, and you've
got your professional advice side, you say before eighteen months
is up, after they've moved in. I would have thought
if you are, if you have a house on your
own and they're moving in, you should have that discussion
before they move in completely.
Speaker 4 (30:50):
I mean, I think to adjust expectations. Then it's a
discussion you want to have before they move in, just
so that you're not springing on them at the eighteen
month month.
Speaker 3 (30:57):
And actually then it sort of takes you know, you say, look,
and if they really care about you, it's your house.
They'd be like, of course, of course, you know, but yeah,
but okay, you can see why. And there'd be people
who would not respond well to that request. Would David,
I'd say, run of mind.
Speaker 4 (31:13):
No, But I mean, if they're the right person and
you know you're in the right relationships, then.
Speaker 3 (31:18):
Ah, so you're a romantic, aren't you as well? Sure,
and you have to be a pragmatist, but that heart
lovers in the air are right, Let's go to Shari.
Speaker 8 (31:29):
Hello are you hi?
Speaker 6 (31:32):
Hi? I'm not really sure how to put it, but anyway,
here goes Okay. Both at the time, my husband and
I we brought a home together. Long story short, we
ended up getting a divorce and everything else went to
the court and I was given the home because I
(31:53):
had the children at home in that period of time.
So anyone used to be exact, I did all the
payments for the home and everything else and the children.
Speaker 3 (32:06):
Were you working? You mean you were covering those debts?
Speaker 6 (32:11):
Yes, and I've paid everything all off. Dis miss out
and long story short, his relationship with this other person
that he's been with had broken up, and then he
found out that the house was paid off and so
forth and so on, and he demanded his other house
(32:34):
of the home.
Speaker 3 (32:36):
How long? What was the period of time for me?
You're breaking up to what's happened?
Speaker 5 (32:46):
So I've got was the notice.
Speaker 6 (32:47):
From from his lawyer to say that he would like
his day.
Speaker 4 (32:53):
Okay, now I understand Sary. I think Tim, this goes
back to what we were talking about earlier about what
what are the risks around not seeing a lawyer and
getting a legally binding agreement in place around your property division?
Because I suppose, I mean, if you've been in a relationship,
your own the home together and it's own personally, then
(33:13):
it is divided fifty to fifty, and so I suppose if.
Speaker 6 (33:17):
That wasn't do have evidence of myself actually paying for everything?
Speaker 4 (33:21):
How long is your relationship?
Speaker 6 (33:26):
My children would have been about ten years? News.
Speaker 3 (33:30):
Did you have children together?
Speaker 2 (33:33):
Right?
Speaker 5 (33:33):
Yeah?
Speaker 4 (33:33):
I mean unlikely that you're going to be able to
bring fit.
Speaker 3 (33:37):
So you're the bread winner and you had children together
and board a house.
Speaker 4 (33:42):
Yeah, and you covered most of the outcomes. I mean,
for a relationship that's that leg you're probably not going
to be able to ring fence your contributions. It's going
to be very difficult to do that. I mean, the
cases where you can ring fence your contributions are where
the duration is at the shorter end of the spectrum,
sort of three, four, five, maybe six years. But when
it's ten, eleven, twelve years, you're not really going to
(34:04):
be able to, say.
Speaker 6 (34:07):
Twenty one years. Yeah, and he was an unrelationships for
their period of time.
Speaker 4 (34:14):
You've been separated for twenty one.
Speaker 6 (34:16):
Years, divorce for tweeny one years.
Speaker 4 (34:19):
Wow, okay different, Okay, sorry we missed that.
Speaker 3 (34:23):
So you were in a relationship and had children with
him fourteen years, then you split up and you've been
separate and divorced for.
Speaker 6 (34:28):
Twenty one Yeah.
Speaker 3 (34:31):
I know, I was.
Speaker 6 (34:32):
Carrying my our last Sonkay.
Speaker 3 (34:37):
That is different.
Speaker 4 (34:38):
Okay, that's okay, that's completely different. I would have thought
that there would be a strong argument that you're compensated
for the contributions you've made since the divorce or since
the date of separation. So even though he's entitled, he
might be entitled to half the home. I think there's
still a strong argument you get compensated for whatever you've
contributed over that twenty one year period.
Speaker 6 (35:00):
It should be compensated for the whole time that I had. Yeah,
in the beginning, because I've put the deposit, everything, paid
the lawyers, so forth and so on. He was still
in an apprenticeship.
Speaker 3 (35:12):
How much How much of the house had been paid
off when you split up?
Speaker 6 (35:17):
Oh much, because.
Speaker 8 (35:20):
Rake was really really high in the period of time.
Speaker 3 (35:24):
And think we're getting more of the gist here. So
they had a house, they bought it. Okay, thanks Sherry.
You need to get some advice.
Speaker 4 (35:32):
Absolutely, I mean, Sharie, it's only it's only the contributions
you've made post separation that you'd be entitled to be
compensated for. I understand that you paid the deposit and
various contributions while you were selling the relationship, but it's
unlikely that you're going to be able to get compensated
for that. The compensation amount would be calculated based on
(35:53):
what you've contributed post separation.
Speaker 3 (35:55):
Yeah, and there must would there be a formula or
a way of calculating that that would be we would
consider fair or would.
Speaker 4 (36:02):
Well, it's it's not so much a formula, but actually
just looking at the bank statements and calculating exactly how
much she has contributed.
Speaker 3 (36:08):
Okay, hey, thanks for your col shary. Because from a
theoretical point of view, let's say let's say they bought
the house only thirty years ago less, so they paid
three hundred thousand for it, right, and you know she
was the main bread when I had kids. We're together
for ten years, they've paid off maybe maybe eight one
hundred thousand, so one third of it's been paid off,
(36:31):
and then she spends years and years paying it off.
So she's paid the rest of the mortgage off, but
the house is worth a million bucks. Now, yes, what
sort of guidance, what's the rough guestimate on how things
would work out?
Speaker 4 (36:44):
I mean, I think that she's got an argument to
be compensated, but you do need to balance that against
the fact that she's had occupation of a property for
twenty one years that she only owns half of. So
actually I probably should qualify my answer because even if
she's got an argument to be compensated. The flip side
of that is that it's an occupation.
Speaker 3 (37:06):
Rent claim and he will say I've had to go elsewhere.
Speaker 4 (37:08):
And well, he'll say, I've been locked out of my
share of the capital for twenty one years. I could
have been getting a return on that investment and I haven't.
So if I treat you like a third party tenant
and have you pay me half of market rent because
that's my share of the property, but then you balance
it again against the fact that the children of the
(37:29):
relationship are living in that home, and so there needs
to be So it's not going to be as straightforward
as she gets back what she's contributed or that she
has to pay market rent. We're going to have to
balance all these considerations and figure out.
Speaker 3 (37:42):
What's Here's the question I think he has made noises
about it. Does how can Shri proactively go, right, well,
I'm not going to have this hanging over my head
for you to go to sleep for the next couple
of years and then suddenly decide you've got a claim.
She obviously needs this resolved and needs to initiate it.
How can she do it in the absence of him
(38:05):
doing anything more than an informal light by the way,
you know.
Speaker 4 (38:09):
I mean, at some point they're going to need to
get lawyers to sign off on it. But if she
wants to kick start some kind of negotiation process, I'd
start off with you, you can have fifty percent as
long as I'm paid back what I contributed, because that's
her best case scenario, So you may as well start
off with that and see where you get to.
Speaker 3 (38:25):
Okay, but she definitely needs to get some legal advice
she read, so don't delay anymore. I would say, yeah,
nine minutes to go. Fascinating. We've had some real curve balls,
haven't we.
Speaker 4 (38:35):
Indeed, totally fun, just about done.
Speaker 3 (38:37):
We might try and squeeze and bill if we've got
a bill. If you're listening, it'll have to be a
very quick question. So just my producer will come to
you and will work that out. It's nine minutes to
six news talk said, be right with Sharon Chandra. She's
a relationship property barrister at what's the name of the
bank side Chambers. Not that she's actually quite busy, by
the way, so she's not actually want to meet it
to out her for work, So I'm not I'm just
(38:58):
mentioning her credibility and what she does and where she
comes from.
Speaker 5 (39:01):
Bill.
Speaker 7 (39:01):
Hello, let's call here?
Speaker 3 (39:04):
Yes, I know, yeah, Hi Bill?
Speaker 1 (39:05):
How are you yeah?
Speaker 7 (39:07):
Just a pretty straight question, yes or no. A couple
lived a bork of twenty five years in a house
that he had paid for fifteen years ago. She puts
a leen on the house, and six months ago she dies.
Does her estate still have a claim on his house?
Speaker 3 (39:25):
That's an interesting one.
Speaker 4 (39:26):
Isn't that very interesting? Interesting? But very simple that I mean?
The short answer is yes, because the executors can essentially
step into her shows and bring or defend whatever claims
she would essentially have made if she were alive. So
with the caveat in place, if she's got a relationship
property claim against the house, then the executors of her
estate do you have the ability to pursue that claim?
Speaker 7 (39:50):
Thank you very much?
Speaker 3 (39:51):
Okay? Got that well, Bill, I always want to if
I could hand you a chocolate fish for the shortest,
most concise call. Thank you for that. Gos that it
sounded more complex in a way. I thought, Oh, that's interesting.
But as you say, once you've I mean, is it
the fact that she'd lodged a liien or doesn't. That's
sort of just an ancillary piece of information.
Speaker 4 (40:11):
It is ancillary. But it's odd to have lodged the
caveat which is essentially the lean, and not done anything
about it for fifteen years.
Speaker 3 (40:19):
Maybe because you've got what you want and you just
sort of think that's sitting there When I need it, I.
Speaker 4 (40:26):
Think I'm protected. I can't be bother getting it sorted out.
As long as he doesn't sell the house in the meantime,
I'm fine.
Speaker 3 (40:32):
Yeah, And then five years becomes ten, becomes.
Speaker 4 (40:35):
Fifteen, and maybe she thought, I'm just going to keep
owning the asset and it can increase in value, and
now make a claim when I'm ready.
Speaker 3 (40:41):
Now the people who are benefiting from her estate will
be thinking that, Hey, Sharon, time flies. Thank you so much.
I hope we can get you back in and we'll
dig into it again.
Speaker 4 (40:49):
Shall thank you.
Speaker 3 (40:49):
Thanks so much, And if you've missed any of these hours,
do check out the podcast on iHeartRadio and we'll look
forward to your company again next weekend. Thank you to
my producer Tyra Award. Great job, Tyra, as always enjoy
the rest of your evening Sunday at six.
Speaker 1 (41:08):
For more from the Weekend Collective.
Speaker 3 (41:10):
Listen live to newth Talk ZEDB weekends from three pm,
or follow the podcast on iHeartRadio.
You're listening to the Weekend Collective podcast from News Talks.
Speaker 2 (00:09):
It'd be then marriage, love and the marriage.
Speaker 3 (00:14):
They go together like a.
Speaker 2 (00:16):
Horse and carriage. This I'll tell you, brother, you can't
have one without the other of van marriage, love and marriage.
It's an institute you can't disparage. Ask the local gentyally
(00:40):
will say it's ellamntry try try.
Speaker 3 (00:46):
I sort of want to let that roll on. It's
quite a nice little ditty that is not loving marriage,
a bit of a bit of our blue eyes Frank
Sinatra there. Welcome back that the song has some relevance
for this out because if you were listening for the
past hour and I you hit me, just tease ahead. Yes,
this is smart money, Welcome to it. The number is
eight hundred eighty eighty. You can text nine two nine
(01:07):
two and as I say, for smart Money today we're
going to talk about it was either going to be
that song. I think it's is it? She is it? Aretha?
Who's oh no, she's sang ries b E C T.
There's a song called divorce which they spell it out
div o r C. I'm trying to remember whoever it is,
but we'll find out. Maybe a big Tammy. Whyette, Oh
she did stand by your man as well as well
(01:29):
as divos sits. Anyway, so we are talking divorce because
it's look, I don't know if it's a taboo topic
these days, because you know, love and marriage and divorce
and things, and it seem that divorce was trendy at
one stage. I always wondered, or but I don't know
what the trends are, but people are getting divorced, you know, relationships,
(01:49):
you know, you get together and you fall apart and
everything in between. Apparently up to forty percent of marriages
in that way here in New Zealand. Gosh, that's quite
a lot, isn't it. I prefer to think sixty percent
of the marriages last. But anyway, so anyway, if you've
got to do it, we I'm curious to know because
you always always hear about divorce and you think, well,
(02:11):
the lawyers are coming in and it's all over by
the shouting, or maybe the shouting is just about to start.
But anyway, we thought we'd dig into the topic of divorce,
but in particular, and it's somewhight ironic because we have
a guest who is a specialist in this sort of
area of law, and we're going to talk about whether
you can do it without a lawyer. So I'm going
(02:32):
to ask you to argue against her own cause here.
But don't worry. She's quite busy, so she's not looking
for work. But her name is Sharon Chandra. I think
this is your second time Sharon. Anyway, she is a
barrister at bank Side Chambers and she's with us for
Smart Money and Sharon.
Speaker 4 (02:48):
Hello, good evening, Tim, Thank you for having me on again.
Speaker 3 (02:51):
Nice to see you.
Speaker 4 (02:53):
Are you keeping busy, very busy? There's no shortage of
people getting divorced.
Speaker 5 (02:58):
Yeah.
Speaker 3 (02:58):
Now I'll just get you to pull your microphone just
a little closer to you, just for safety safety. I
don't know what I'm talking about, can you. I'm just
going to ask the question straight up? Can you do
a DIY divorce?
Speaker 4 (03:12):
Very interesting question. There's I think there's there's a distinction
between the divorce itself, which is dissolving the marriage.
Speaker 3 (03:20):
It's just like we've been separate for two years pill.
Speaker 4 (03:22):
Exactly, and that is a straightforward process. So you can
diy that. The forms are online on the Ministry of
Justice website. You can dissolve your marriage in a very
straightforward way.
Speaker 3 (03:33):
Wow, there we go. There's this. Actually, there's two things
we should celebrate there. Now I'm going to be very misterieosus,
but I know you know that it's in the spread
of the is that we've got a straight answer from
a lawyer, which you don't often think you're going to get.
But it's all over.
Speaker 1 (03:45):
There we go.
Speaker 3 (03:46):
But it's not. It's about everything that precedes that. It's
around the separation and.
Speaker 4 (03:51):
Well it's the property division. You do need a lawyer
to be involved to finalize your property division, but you
can dissolve your marriage in a very DIY style.
Speaker 3 (04:01):
Wait, so do you you do need a lawyer for
the property divisions simply because we're talking about no no,
no houses and stuff and just transferring title, I.
Speaker 4 (04:11):
Mean need Well, it's more that you can't have a
legally binding agreement dividing your property without a lawyer for
each party signing it off.
Speaker 3 (04:21):
Oh really, absolutely, your.
Speaker 4 (04:23):
Agreement won't be legally binding unless you've had independent lawyers
certify that agreement for you.
Speaker 3 (04:28):
So you can't escape the lawyer.
Speaker 4 (04:30):
You cannot escape us unless you have nothing. Well, even
if you have nothing, it's another.
Speaker 3 (04:36):
Song by the ways, I who have nothing, we'll get
and we'll get tired of load that one up that
should have built that into it. I who have nothing
means I can get divorced for free. Sorry, even if.
Speaker 4 (04:47):
You've got nothing, you want to protect yourself for the
future because you might even though you might have nothing.
Now that may not always be.
Speaker 3 (04:54):
The case, but once you divorce, you if you have
nothing when you divorce, you're probably okay. And I actually
that's a silly thing. I'm being a little bit flippant
because everyone has something in relationships. I mean hard to
imagine people. It's hard to imagine many people literally absolutely.
Speaker 4 (05:08):
I'll give you a scenario. Say you set up a
little business. It's nothing during the relationship, but just it's
their dormant, it's inactive. You think you've got nothing without
any kind of value. You decide on you know, five
years time, you're going to do something with it, and
you build it up.
Speaker 3 (05:23):
Okay, but business that was.
Speaker 4 (05:25):
Created during your relationship. I'm not saying.
Speaker 3 (05:28):
That that you're stuffed.
Speaker 4 (05:29):
That you're stuffed, but it's going to create issues, so.
Speaker 3 (05:33):
So you need the lawyers. So how okay. I think
the more reasonable way for me to frame the question
because deliberately being a bit mischievous and the way we
set it up. But how much can people work out
between themselves on this? And I guess it depends on
whether you are capable of having having an amical, amicable divorce,
which I know a lot of people start that process
(05:56):
they realize they've fallen out of love, and then funny
thing is when property and money gets involved, the intentions
of amicability, if that's the word, can quickly disappear, can't they.
Speaker 4 (06:08):
That's right? I mean, I think that there is space
for negotiating things between yourselves in an amicable way. There's
a space for that, but only after you've gotten some
advice about what you're actually legally entitled to, because then
you've at least got a bottom line from which to
negotiate with. Otherwise you're negotiating without any kind of benchmark
(06:29):
of where you should be or what your actual entitlement is.
And I think that that's part of the danger of
starting to negotiate a property division without fully understanding what
you're legally entitled to, because what you're agreeing to could
be a lot more than what you're actually entitled to
or it could be less, and then it messes with
(06:50):
expectations once people do get legal advice.
Speaker 3 (06:53):
Can divorce be easier? Can divorce be easy? Can separation?
Can dissolving a relationship? And look, we are talking about
the money side of things in the property side. Can
it be easy or is it?
Speaker 4 (07:09):
It can be? It's a spectrum. I mean, some cases
get resolved very quickly. Others take years. I just had
one recently which I'd probably say was my quickest separation
in the history of my career. But that was because
she did a prenup with me, and then it was
very straightforward once the property division came about.
Speaker 3 (07:28):
But the prenup requires probably some legal advice that some
stage you're up for some legal advice. Absolutely, Yeah, it's
it expensive to I mean, I know people who have
quite well off who've separated and everything's cost a fortune,
you know, the cost of what they've had to pay
the other partner or about or something in the legal
(07:49):
fees and all that sort of thing. I mean, but yeah,
is it expensive from a legal point of view or
can you imagine scenarios where we'll look, this is your minimum,
It's not that bad.
Speaker 4 (07:59):
Let's just say the cost of protecting yourself is significantly
cheaper than the costs you're bearing on the other side
of it once you've already separated.
Speaker 3 (08:08):
So your point would be that when it comes to
any relationship, that you are really better off just spending
some money protecting, you know, coming up with an equation
and how things are going to be divvied.
Speaker 4 (08:23):
I think that that's the most prudent way to do it.
But I think that it's easy for me to sit
here and say, but couples do find it difficult to
work through that process. It's not what a prenup, the
prenuptial agreement process.
Speaker 3 (08:37):
Especially because it's so unromantic, isn't it. I mean, whatever
happened to romance and things? And it's it's almost I
could always imagine you'd have. It's almost a personality type
that you'd have to rely on that some there are
some people who can just go, look, I absolutely love
him or her, and I completely understand it needs to happen,
so I'm cool with it. And yet there are other
(08:58):
personality types for whom they've raised the question of if
we split up means they're not there full on lationships
over before it's even started. Because you know that's right.
Speaker 4 (09:09):
That's right. And as you say, I mean, I encounter
lots of different types of couples. I mean the people
who come to me for pre nups, the majority are
people who have already been through a separation before. Those
are the people that are always coming and getting the
pre nups done. Less so the people who into a
(09:29):
relationship with no assets and they build their wealth together.
Speaker 3 (09:34):
That is the interesting one, isn't it. Because I mean,
I'm in my I've got to be careful how I
say this, because and when I say I'm in my
first marriage, I'm not intending to be the first of many.
I did have a friend of mine who used to
jokingly introduce his wife as this is my first wife,
such and such and people just to watch people squirm.
(09:55):
And I remember his wife saying I'm still married to him.
And yes, you know, she did have a good line,
actually said anyone who gets introduced as a first wife
is entitled to start look for a second husband. I
did think that was quite funny.
Speaker 4 (10:08):
I think that's fair.
Speaker 3 (10:11):
But I mean I never would have thought of a prenup.
I know my wife wouldn't have. And look, I'm hoping
and imagining that that's not something that's going to be needed.
But what happens with those the couples who have built
everything from scratch, doesn't mean because they had nothing when
they came together that and they've built their lives up.
(10:33):
They've you know, maybe had children, they bought a house,
they've developed some savings and assets. Is that fairly straightforward
because we're not looking at something that's out of whack
at the starter or is it just look, you guys
are worth a half a million combined. You're gonna have
to spend some money to sort out, you know, and
maybe there'll be something left up for once you paid
the fees.
Speaker 4 (10:53):
I mean that there are always there are always issues
that need to be iron It's never as straightforward. Yes,
fifty to fifty sounds straightforward on paper, but there's always
little quirks to each case as to exactly kiwish over
how that takes place. And I mean economic disparity. The
section fifteen thing seems to be a big one. Long marriage,
as they've had children, one person takes time off from
(11:15):
work or their career to care for the children, and
the person who's continued to work is essentially required to
pay some form of compensation. I mean in a long
marriage where they've built their assets together, that's probably traditionally
your main issue or the most significant issrue.
Speaker 3 (11:32):
Look, we've loved your cause, by the way, if you've
got any questions around it, and look, I know that
when it comes to divorce, you know, it's a difficult
one to talk about publicly. So you actually might just
simply know someone who's a friend who you're trying to
get some advice for. We'll treat everything as asking for
a friend, even if it's not you. But if you've
got any calls and you've got any questions around it,
(11:53):
because it also might be the case you're in an
absolutely happy relationship and or you're entering a relationship you
want to protect your assets. If you want to pick
Sharon's brains, she's an expert expert and divorce. What's the
word for what you do?
Speaker 4 (12:09):
Well, I call it relationship property because my expertise is
in the property division when people separate.
Speaker 3 (12:15):
If you've got any questions, we'd love to hear from you.
On eight hundred and eighty ten eighty How actually, how
of course, if you've got children together, do you get
involved in that side of things as well as a
relationship property lawyer, because when people are separating the question
of access and who's got the children, that's I'll be honest.
(12:36):
When I practice law, briefly, I never went anywhere near
the family law cases because I considered I still just
I didn't have a clue about relationships myself, so I
stayed clear of it. But that's also is that something
that can be worked out between it?
Speaker 6 (12:50):
Is?
Speaker 4 (12:50):
It is? That's a completely different kettle of fish from
a legal point of view. That is something that can
be worked out without lawyers if it's amicable, when everyone agrees,
you don't need to have a lawyer on to get
that sorted.
Speaker 3 (13:06):
But is that what the family court can? You can
have mediations and mediation process.
Speaker 4 (13:11):
Yep, that's right. And I mean if you are having
difficulty talking, I mean I don't do this kind of work,
so I really underdo the relationship property But.
Speaker 3 (13:20):
A lawyers often would only I mean, you'd only often
get a lawyer involved if you want some to sort
of hold your hand from a support point of view
in a way, wouldn't you just have someone in there
with you before?
Speaker 7 (13:28):
Right?
Speaker 4 (13:28):
Or you're having difficulty negotiating it yourself or having the
discussions yourself, because I mean, let's be honest, when you're
dealing with children, the emotions are probably running a bit
higher than when you're talking about the property side of things.
Speaker 3 (13:40):
So yeah, right, we want your cause. On eight hundred
and eighty ten and eighty Sharon Chandra is my guess.
She's a barrister at Bankside Chambers. She's a relationship property lawyer,
and I asked by whether you could do the DII divorce.
You can do the dissolution, certainly, but the property, no,
you can't really do it without getting some legal advice
(14:01):
and support in there. But what if you managed to
do yourself. If you've got questions for Sharon, give us
a call. On eight hundred and eighty ten eighty we've
got Brad on Hobbit. Brad, I'll just ask you to
stay there because we're going to take a quick break
and we'll be back into it straight after this. This
is news Talk, said B twenty one past five. Yes,
welcome back. We are with the Sharon Chandra and we're
discussing look at is It's a difficult topic for many people.
(14:23):
No one who enters into a loving relationship, wants it
to fall apart. You want to go forever, but sometimes
it doesn't. So can you do it yourself? And when
do you know? You got any questions for? Sharon Chander
who's our expert and she's a lawyer barrister at Bankside
Chambers with specialty and relationship property discussions. Shall we call
it and let's go to Brad. Hello, Brad, Hi, how's
(14:46):
it going good? Thanks?
Speaker 8 (14:49):
Yep? So so actually this is actual for a friend.
Just to be clear, I'm heavily married of seventeen years.
Just to guest, thank you, so actual for a friend
he's been. I'll take a bit of a picture for you,
and then a little bit advice passed on of the
ideal he's been in there. It just came out of
(15:09):
a relationship about two and a half years. But she
has not moved out of the house. They say that
that she says that they're just friends and she's just
going to stay there until she finds another home. What
I'm noticing and what I have no one over the
last two and a half years, she's been no good
for him to begin with, and but he doesn't seem
(15:31):
to know how to get her out or I think
she's going to he owns the house.
Speaker 3 (15:36):
Sorry, they've gone from lovers to flatmates?
Speaker 5 (15:39):
Is that?
Speaker 8 (15:41):
And he owns the property, he's working. She's never word
she's always just lived off him, and I'm the concern
for him and he doesn't want to listen too much
that in six months time it could be a different story.
Is that? So I know that they've separated, But what
kind of stand she has to say that in six
months time when it becomes three years, even though they've
(16:03):
been separated for six months.
Speaker 3 (16:06):
Cool Brad, this is a really one.
Speaker 4 (16:08):
I mean, your friend needs to take some action now,
because the last thing you want is for there to
be some kind of assertion that the date of separation
occurred after that three year mark, because that's just going
to change the entire game. So your friend needs to
needs to take some action on this and urgently and
get her to move out. I mean, if it's less
than three years, then it's just your your civil law regime,
(16:31):
and so he can get her trespassed from the property
if he's the legal owner of the property, and that
he's got to have the bulls to do that.
Speaker 8 (16:39):
Right, that's the word right there, right, which yes, Cajones. Yeah,
so okay, what if I've thought I've got a text
message him telling me that they've separated, but she's staying
in the house and talk about it.
Speaker 3 (16:55):
And I can tell you that that's not good enough,
and Sharon, it's going to ye.
Speaker 4 (16:59):
No, he needs to do something more than that, because
she it sounds like she maybe that's why she's staying
in the house. Maybe maybe that's why she's not moving
out because she wants that three year mark to pass.
Speaker 3 (17:09):
Whoa and she and then after that there's a presumption,
isn't there sharing a fifty percent starting.
Speaker 4 (17:15):
Point will be fifty percent?
Speaker 8 (17:16):
Yeah, that's a shame is worth hard for that?
Speaker 3 (17:18):
Okay, well, can I just ask how No, and I
did have a question there. It's completely abandoned me for
a moment. But has oh, that's what it is. Has
he accepted and I think this is the big question,
and has he accepted that the relationship is over or
you sort of like, mate, I don't think you've worked
(17:39):
out the relationship is over.
Speaker 8 (17:42):
Now he has? Is of just yesterday ashually, I was
doing some firew with with them. Man, I was trying
to pull some sense on them. But he's very much
like it's definitely over, but she's just waiting to find
another house. I'm like, maybe I don't think.
Speaker 3 (17:56):
Okay, well, you've done him a favor by calling up.
You should get him to listen to us back on
demand at about just after twenty past five. Because that
is yeah, now, thanks for your cool Brad. That's actually
that is I have. That's not the first time I've
heard of people who have split up and they're funny enough.
They might have gone from being flatmates to being lovers.
(18:17):
And there's a big trap with that whole cohabiting thing,
isn't that There.
Speaker 4 (18:21):
Is, Especially relationships that start out as flatmates and then
turn into something more romantic. There is always an issue
about when did the de facto relationship actually commence? When
does that three year period start running.
Speaker 3 (18:33):
Yeah, so if you are flatting with someone and you
own the house and there your flatmate and you fall
in love, you probably need to get some relationship advice
pretty quickly. I've got a technical question on that. Could
it if let's say that Brad's friend is that he
actually doesn't have any ex to grime with his ex
(18:55):
now and she's in the house, could it ever be
envisage that he could say to a judge, Look, I
need you to give us a ruling that we are
split up, but I don't mind he' staying on as
a flat mate or is it just going to be
mate and she's got to get out.
Speaker 4 (19:11):
I mean, it is possible to get a ruling from
the court on it. Whether it needs to get to
that stage or not is probably questionable. But I mean
with her, he's always going to have a risk if
she's still living under the same ruth because things like
text messages and what you say to each other.
Speaker 3 (19:29):
Actually you could argue we're back on again.
Speaker 4 (19:32):
Well exactly, and it doesn't actually matter what you say.
It's what your actions show, it's what your conduct is,
and that's the way that it's assessed.
Speaker 3 (19:39):
Now, how quickly, how quickly, realistically, can this person take
the right action they need to do to protect themselves
in terms of picking up the phone and actually getting
it resolved. So it's not okay, we're another four months
down the track.
Speaker 4 (19:55):
I mean, all he would need to do is go
and see a lawyer, get them to write a letter
to her saying you separated, you need to move out.
Here's the date. Otherwise we're going to serve a trespus
notice on you. It's very harsh.
Speaker 3 (20:06):
I know it is harsh, isn't it. But there's no
other that's it, doesn't it. It's what we're getting into
harsh territory.
Speaker 4 (20:12):
Out Well, otherwise, I think that he's gonna have some risks.
Speaker 3 (20:15):
I mean, well, if he's got the house, let's say,
let's just make a figure up that he's got some
equity in the he's worked for it, but he's still
got a mortgage. He could easily have easily have half
a million a million bucks in equity. I guess you've
got to say to him, Okay, well it's four hundred
thousand or five hundred thousand dollars worth being nice.
Speaker 4 (20:35):
That's right. I mean, in some cases, if you're just
over that three year mark, then even though you've got
the starting presumption of fifty percent, it's still a very
strong but you've got to pay lawyers to negotiate that.
It's not your presumption. It's not the starting point. It
becomes a whole. That's another kittle of fish witch.
Speaker 3 (20:53):
I'll tell you what that would. There's there's the makings
of a great family law exam question and there isn't.
Speaker 4 (20:59):
That it sounds like it doesn't.
Speaker 3 (21:00):
It looks like a straight straight out of an exam paper.
But for real, well, and yeah, hey, thanks for call Brad.
Good on you. Let's go to Darren.
Speaker 5 (21:08):
Hello, Hey, good atim and Sharon?
Speaker 3 (21:11):
How are you excellent?
Speaker 4 (21:12):
Darreon?
Speaker 5 (21:14):
Hey, I couldn't turn the phone on at the radio
and at a good time because I've got a question.
I currently am seeking legal advice, but I just wanted
to run it over a seeking able. So I've got
a pre natural agreement drawn up in two thousand and
eight because of the money I had for the property
was sixty percent of the value. My partner had zero money.
(21:37):
We've since then had a couple of kids. My partner
said to me, your pre natural agreement. All contract in
that agreement is irrelevant now because we've got kids. However,
and so we've purchased an other property, and the contract
very clearly says that will roll over to whatever property
has purchased, And in the contract that says it will
(21:59):
be I will get the money I put back and
or sixty percent value of the houses, which so obviously
my venue in the houses are overdoubled because the contract
was drawn up in two thousand and eight, but the
contract has never been reviewed until we broke up in
twenty twenty five. My lawles seat that can be challenged.
(22:24):
What is your advice of what the possible outcomes may.
Speaker 6 (22:27):
Be on us?
Speaker 4 (22:29):
This is a very tricky situation, Darren. I mean, yes,
these contracting art agreements really do need to be reviewed
regularly over time. The more time that passes where the
agreement hasn't been reviewed, the more likely it is that
it's going to be able to be challenged. And you're
talking about two thousand and eight. There's another property. You've
had two kids, so circumstances have changed quite a lot
(22:51):
since you first signed that agreement. I mean, I would
say that there is probably a strong case to set
it aside. But I think that what that should tell
you is that it's not necessarily that you need to
agree that you disregard the agreement altogether. I think that
there's room to negotiate some kind of settlement there. But
(23:12):
unless you sort of want to end up in court,
you probably do want to do want to come to
the table and negotiate something that's potentially a bit more
than the contracting art agreement, but not completely disregarding what
the contracting art agreement says, because in a case like this,
I think they've probably got quite a good argument that
it should be set aside.
Speaker 5 (23:32):
Yeah, was there anything?
Speaker 3 (23:33):
Can I ask you, Darren? Was there any mention of
what happens with when you have children? Is there any
mention of what the future might entailed?
Speaker 5 (23:40):
No mention of that? Obviously being drawn up to two
thousand and eight, there was. My law has currently said
she would now have review processes, and obviously there was
no no, absolutely, I.
Speaker 4 (23:54):
Mean, Darren that the tricky thing is that back in
the early two thousands, these agreements weren't being challenged or
being set aside as frequently. It's only in the last
decade or so that it's come a lot more prevalent.
And so now the advice that everyone's getting when they're
signing these agreements is to make sure that they're reviewed.
But you potentially wouldn't have got that advice at the
time because it wasn't as prevalent. So it's not your fault.
(24:16):
You didn't do anything wrong.
Speaker 3 (24:18):
But what's what's the vibe between and obviously you know
it is going to be contentious. But is it hostile
or is it just simply like that your ex pointing
out that, well, you know, things have changed, it's not
kind of quite go along those lines.
Speaker 5 (24:33):
Well, it's it's funny you say that because it started
are amicable, it's completely gone the other way. And I
guess the whole thing now is my lawyer has just
dropped the my my ex was completely unaware that this
was anything that was still viable. So the bomb got
dropped a week ago. Justice full response. So it's a
(24:55):
bit of a nervous time. But the advice that has
been has been good. So it's been an interesting case,
I'm assuming from what I'm hearing.
Speaker 3 (25:05):
Oh, well, good luck with that or down your tough time? Yeah, actually,
I mean how obviously Darren's really stressed about it, as
you would be. Do you ever, what advice do you
have for clients who are nervous about the whole thing?
Is there anything you can say to sort of help
(25:27):
them with accepting that. Look, you know they're not going
to get crucified, but it's going to be a tough time,
But do you ever try and can you console them
where you just have to stick to your knitting and go, well,
I'll do my best for you.
Speaker 4 (25:39):
I mean, I honestly think the best way that you
can serve a client is by being straight up with
them about what they're up for and where you think
that they stand legally. And yes, it might be it
might involve dropping a bomb, but I think that that's
the best way that you can arm them to make
the decisions that they that they need to make. I mean,
Darren's situation is very tricky. I mean, he's at the
(26:01):
time he would have thought he did all the right things,
and on paper he did everything right, but he just
didn't get the advice around making sure that it's reviewed.
And now he's in a situation where should a lawyer.
Speaker 3 (26:15):
I'm not trying to be make mischief for the EU either,
but should lawyers if they do do prenuptial agreements? I mean,
I would imagine these days you would say to someone,
here's your prenup, but you need to check in with
me in a few years time.
Speaker 4 (26:27):
Absolutely, I don't think any lawyer is certifying a contracting
art agreement for a client and not telling them that
they need to review it regularly over time.
Speaker 3 (26:34):
Is that negligent? A hot tape. That's a hot It
can be.
Speaker 4 (26:38):
It can be. There are cases where if an agreement
has been successfully set aside and a client should have
been advised that they were to review the agreement regularly,
and they weren't given that advice, or they were given
in correct advice, or they weren't advised about what they
were legally entitled to, so they didn't know what they
were signing up for. There are situations where you've got
(26:59):
negligence cases.
Speaker 3 (27:00):
Okay, slightly, this is shark infested waters then, Because and
I'm sure Darren down still listening. But if the lawyer
who drew up that agreement in two thousand and eight
is acting for him almost twenty years later and he
hasn't heard, hasn't had any dealings with him about the prenup,
I think that. I think it raises questions about whether
you should actually have that lawyer on your side, because
(27:23):
shouldn't shouldn't you? I mean that lawyer might have let
the side down.
Speaker 4 (27:26):
Well, I don't want to get it.
Speaker 3 (27:28):
I don't want to be contentious, but you know, I
just want to have a reasonable discussion around it, you know what.
Speaker 4 (27:31):
I Well, I think because I mean, as I say,
it wasn't as prevalent back in the early two thousands.
Oh so you might, so it might not be negligent
to not have.
Speaker 3 (27:39):
Given where it's advised two fifteen.
Speaker 4 (27:42):
Exactly. Yeah, that's right, dear so, because the advice that
you're giving the client, you change it depending on what
the cases are saying. And back then it probably was
reasonable that you could rely on an agreement, probably more
so than you can now.
Speaker 3 (27:57):
Actually, I'm glad I asked the question because that's that
seems like a common sense answer. It's like, you know,
if you've if you've done the agreement back in a
time when these things were just like you've done the job,
that's the courts respect these agreements. And then ten years later.
Speaker 4 (28:10):
Oops, exactly exactly correctly.
Speaker 3 (28:14):
Look, we're going to take some more another break. We've
got lots of texts to get on with, which you
know is understandable because it's a sensitive area of law.
And Sharon Chandra is my guest. She's a barrister at
bank Side Chambers. And we'll be back and just tack
news Talk, said B. Twenty two minutes to set. News
Talk said B. We're back with Sharon Chandra we're talking
about relationship property and relationships that break up and getting
(28:36):
your advice and calls on this, and callers will always
jump the cure of the texts. So Grant, it's you today.
Speaker 1 (28:42):
Yeah, my call is about the first call, an issue
that the Brad's brought up about his friend. Now, my
situation is I own a freehold house. I'm not in
a relationship at the moment, and obviously the law can
and maybe has changed. But my understanding is if I
(29:03):
get into a relationship, he moves in and then three four,
five years down the track we split up because I
own the house before the relationship started, that she would
have no claim on that.
Speaker 8 (29:16):
Is that not correct?
Speaker 4 (29:17):
That is absolutely not correct, Grant. If you own the
house personally and that's the home that the two of
you live in, if you live there for three years
or more, then it is going to be shared equally.
Speaker 3 (29:28):
Yeah, okay, Well have you got someone we don't know about, Grant?
Speaker 4 (29:35):
No?
Speaker 1 (29:35):
Well, like I said, I'm not in a relationship at
the moment, but always like to be repaired because.
Speaker 4 (29:41):
Well I need a prenup. Once before you get someone
to move in, or even shortly after they've moved in,
just make sure you do your prenup agreement.
Speaker 1 (29:50):
Yeah, because the problem is the courses you fall in
love with someone, you think it's gonna last river, and
it doesn't. Love the next person, it's gonna last river,
and it doesn't.
Speaker 4 (30:00):
I mean, I'm not I'm not saying that every person
you date you need to get them to sign the prenup.
It's only if it gets serious enough that you're thinking
about wanting them to move in and live with you.
Speaker 3 (30:10):
Yeah.
Speaker 1 (30:11):
Yeah, yeah, so as long as it's done before the
three years is up.
Speaker 4 (30:16):
I usually say no later than you, No later than
you've been living together for eighteen months. No later than that.
Don't start the process any later than that.
Speaker 1 (30:25):
Yeah, because obviously you don't want to ask, but a lady,
you want to go out on the date, let's have
a prenup.
Speaker 3 (30:32):
No. But but actually that's an interesting one. Thanks for
asking that, mentioned raising that grant, because my gut reaction
would be, and everyone will have their own, and you've
got your professional advice side, you say before eighteen months
is up, after they've moved in. I would have thought
if you are, if you have a house on your
own and they're moving in, you should have that discussion
before they move in completely.
Speaker 4 (30:50):
I mean, I think to adjust expectations. Then it's a
discussion you want to have before they move in, just
so that you're not springing on them at the eighteen
month month.
Speaker 3 (30:57):
And actually then it sort of takes you know, you say, look,
and if they really care about you, it's your house.
They'd be like, of course, of course, you know, but yeah,
but okay, you can see why. And there'd be people
who would not respond well to that request. Would David,
I'd say, run of mind.
Speaker 4 (31:13):
No, But I mean, if they're the right person and
you know you're in the right relationships, then.
Speaker 3 (31:18):
Ah, so you're a romantic, aren't you as well? Sure,
and you have to be a pragmatist, but that heart
lovers in the air are right, Let's go to Shari.
Speaker 8 (31:29):
Hello are you hi?
Speaker 6 (31:32):
Hi? I'm not really sure how to put it, but anyway,
here goes Okay. Both at the time, my husband and
I we brought a home together. Long story short, we
ended up getting a divorce and everything else went to
the court and I was given the home because I
(31:53):
had the children at home in that period of time.
So anyone used to be exact, I did all the
payments for the home and everything else and the children.
Speaker 3 (32:06):
Were you working? You mean you were covering those debts?
Speaker 6 (32:11):
Yes, and I've paid everything all off. Dis miss out
and long story short, his relationship with this other person
that he's been with had broken up, and then he
found out that the house was paid off and so
forth and so on, and he demanded his other house
(32:34):
of the home.
Speaker 3 (32:36):
How long? What was the period of time for me?
You're breaking up to what's happened?
Speaker 5 (32:46):
So I've got was the notice.
Speaker 6 (32:47):
From from his lawyer to say that he would like
his day.
Speaker 4 (32:53):
Okay, now I understand Sary. I think Tim, this goes
back to what we were talking about earlier about what
what are the risks around not seeing a lawyer and
getting a legally binding agreement in place around your property division?
Because I suppose, I mean, if you've been in a relationship,
your own the home together and it's own personally, then
(33:13):
it is divided fifty to fifty, and so I suppose if.
Speaker 6 (33:17):
That wasn't do have evidence of myself actually paying for everything?
Speaker 4 (33:21):
How long is your relationship?
Speaker 6 (33:26):
My children would have been about ten years? News.
Speaker 3 (33:30):
Did you have children together?
Speaker 2 (33:33):
Right?
Speaker 5 (33:33):
Yeah?
Speaker 4 (33:33):
I mean unlikely that you're going to be able to
bring fit.
Speaker 3 (33:37):
So you're the bread winner and you had children together
and board a house.
Speaker 4 (33:42):
Yeah, and you covered most of the outcomes. I mean,
for a relationship that's that leg you're probably not going
to be able to ring fence your contributions. It's going
to be very difficult to do that. I mean, the
cases where you can ring fence your contributions are where
the duration is at the shorter end of the spectrum,
sort of three, four, five, maybe six years. But when
it's ten, eleven, twelve years, you're not really going to
(34:04):
be able to, say.
Speaker 6 (34:07):
Twenty one years. Yeah, and he was an unrelationships for
their period of time.
Speaker 4 (34:14):
You've been separated for twenty one.
Speaker 6 (34:16):
Years, divorce for tweeny one years.
Speaker 4 (34:19):
Wow, okay different, Okay, sorry we missed that.
Speaker 3 (34:23):
So you were in a relationship and had children with
him fourteen years, then you split up and you've been
separate and divorced for.
Speaker 6 (34:28):
Twenty one Yeah.
Speaker 3 (34:31):
I know, I was.
Speaker 6 (34:32):
Carrying my our last Sonkay.
Speaker 3 (34:37):
That is different.
Speaker 4 (34:38):
Okay, that's okay, that's completely different. I would have thought
that there would be a strong argument that you're compensated
for the contributions you've made since the divorce or since
the date of separation. So even though he's entitled, he
might be entitled to half the home. I think there's
still a strong argument you get compensated for whatever you've
contributed over that twenty one year period.
Speaker 6 (35:00):
It should be compensated for the whole time that I had. Yeah,
in the beginning, because I've put the deposit, everything, paid
the lawyers, so forth and so on. He was still
in an apprenticeship.
Speaker 3 (35:12):
How much How much of the house had been paid
off when you split up?
Speaker 6 (35:17):
Oh much, because.
Speaker 8 (35:20):
Rake was really really high in the period of time.
Speaker 3 (35:24):
And think we're getting more of the gist here. So
they had a house, they bought it. Okay, thanks Sherry.
You need to get some advice.
Speaker 4 (35:32):
Absolutely, I mean, Sharie, it's only it's only the contributions
you've made post separation that you'd be entitled to be
compensated for. I understand that you paid the deposit and
various contributions while you were selling the relationship, but it's
unlikely that you're going to be able to get compensated
for that. The compensation amount would be calculated based on
(35:53):
what you've contributed post separation.
Speaker 3 (35:55):
Yeah, and there must would there be a formula or
a way of calculating that that would be we would
consider fair or would.
Speaker 4 (36:02):
Well, it's it's not so much a formula, but actually
just looking at the bank statements and calculating exactly how
much she has contributed.
Speaker 3 (36:08):
Okay, hey, thanks for your col shary. Because from a
theoretical point of view, let's say let's say they bought
the house only thirty years ago less, so they paid
three hundred thousand for it, right, and you know she
was the main bread when I had kids. We're together
for ten years, they've paid off maybe maybe eight one
hundred thousand, so one third of it's been paid off,
(36:31):
and then she spends years and years paying it off.
So she's paid the rest of the mortgage off, but
the house is worth a million bucks. Now, yes, what
sort of guidance, what's the rough guestimate on how things
would work out?
Speaker 4 (36:44):
I mean, I think that she's got an argument to
be compensated, but you do need to balance that against
the fact that she's had occupation of a property for
twenty one years that she only owns half of. So
actually I probably should qualify my answer because even if
she's got an argument to be compensated. The flip side
of that is that it's an occupation.
Speaker 3 (37:06):
Rent claim and he will say I've had to go elsewhere.
Speaker 4 (37:08):
And well, he'll say, I've been locked out of my
share of the capital for twenty one years. I could
have been getting a return on that investment and I haven't.
So if I treat you like a third party tenant
and have you pay me half of market rent because
that's my share of the property, but then you balance
it again against the fact that the children of the
(37:29):
relationship are living in that home, and so there needs
to be So it's not going to be as straightforward
as she gets back what she's contributed or that she
has to pay market rent. We're going to have to
balance all these considerations and figure out.
Speaker 3 (37:42):
What's Here's the question I think he has made noises
about it. Does how can Shri proactively go, right, well,
I'm not going to have this hanging over my head
for you to go to sleep for the next couple
of years and then suddenly decide you've got a claim.
She obviously needs this resolved and needs to initiate it.
How can she do it in the absence of him
(38:05):
doing anything more than an informal light by the way,
you know.
Speaker 4 (38:09):
I mean, at some point they're going to need to
get lawyers to sign off on it. But if she
wants to kick start some kind of negotiation process, I'd
start off with you, you can have fifty percent as
long as I'm paid back what I contributed, because that's
her best case scenario, So you may as well start
off with that and see where you get to.
Speaker 3 (38:25):
Okay, but she definitely needs to get some legal advice
she read, so don't delay anymore. I would say, yeah,
nine minutes to go. Fascinating. We've had some real curve balls,
haven't we.
Speaker 4 (38:35):
Indeed, totally fun, just about done.
Speaker 3 (38:37):
We might try and squeeze and bill if we've got
a bill. If you're listening, it'll have to be a
very quick question. So just my producer will come to
you and will work that out. It's nine minutes to
six news talk said, be right with Sharon Chandra. She's
a relationship property barrister at what's the name of the
bank side Chambers. Not that she's actually quite busy, by
the way, so she's not actually want to meet it
to out her for work, So I'm not I'm just
(38:58):
mentioning her credibility and what she does and where she
comes from.
Speaker 5 (39:01):
Bill.
Speaker 7 (39:01):
Hello, let's call here?
Speaker 3 (39:04):
Yes, I know, yeah, Hi Bill?
Speaker 1 (39:05):
How are you yeah?
Speaker 7 (39:07):
Just a pretty straight question, yes or no. A couple
lived a bork of twenty five years in a house
that he had paid for fifteen years ago. She puts
a leen on the house, and six months ago she dies.
Does her estate still have a claim on his house?
Speaker 3 (39:25):
That's an interesting one.
Speaker 4 (39:26):
Isn't that very interesting? Interesting? But very simple that I mean?
The short answer is yes, because the executors can essentially
step into her shows and bring or defend whatever claims
she would essentially have made if she were alive. So
with the caveat in place, if she's got a relationship
property claim against the house, then the executors of her
estate do you have the ability to pursue that claim?
Speaker 7 (39:50):
Thank you very much?
Speaker 3 (39:51):
Okay? Got that well, Bill, I always want to if
I could hand you a chocolate fish for the shortest,
most concise call. Thank you for that. Gos that it
sounded more complex in a way. I thought, Oh, that's interesting.
But as you say, once you've I mean, is it
the fact that she'd lodged a liien or doesn't. That's
sort of just an ancillary piece of information.
Speaker 4 (40:11):
It is ancillary. But it's odd to have lodged the
caveat which is essentially the lean, and not done anything
about it for fifteen years.
Speaker 3 (40:19):
Maybe because you've got what you want and you just
sort of think that's sitting there When I need it, I.
Speaker 4 (40:26):
Think I'm protected. I can't be bother getting it sorted out.
As long as he doesn't sell the house in the meantime,
I'm fine.
Speaker 3 (40:32):
Yeah, And then five years becomes ten, becomes.
Speaker 4 (40:35):
Fifteen, and maybe she thought, I'm just going to keep
owning the asset and it can increase in value, and
now make a claim when I'm ready.
Speaker 3 (40:41):
Now the people who are benefiting from her estate will
be thinking that, Hey, Sharon, time flies. Thank you so much.
I hope we can get you back in and we'll
dig into it again.
Speaker 4 (40:49):
Shall thank you.
Speaker 3 (40:49):
Thanks so much, And if you've missed any of these hours,
do check out the podcast on iHeartRadio and we'll look
forward to your company again next weekend. Thank you to
my producer Tyra Award. Great job, Tyra, as always enjoy
the rest of your evening Sunday at six.
Speaker 1 (41:08):
For more from the Weekend Collective.
Speaker 3 (41:10):
Listen live to newth Talk ZEDB weekends from three pm,
or follow the podcast on iHeartRadio.
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