After a separation, the first step in the process is usually to determine what is relationship property and what is trust property. Trust property is not governed by the same rules as relationship property so it can complicate matters.
The process of determining what property you and your partner own or have in a trust may take some time. It will take even longer if your partner is not forthcoming about what property they own or have an interest in. They may also disagree about the value of that property.
Any interests in property or in a trust will need to be disclosed to the other party. The emails between your lawyers so far will likely have been focused on this discovery and disclosure process.
Resolution
A common method of resolution in relationship property disputes is private mediation. In private mediation, an independent mediator facilitates a discussion and negotiation between both of you and your lawyers. The mediation usually takes at least half a day to reach a successful outcome. Parties typically share the cost of mediation.
As you and your partner are in different countries you need to conduct the mediation using a video conferencing app such as Zoom or Microsoft Teams. Remote mediations have become increasingly common with Covid-19 lockdowns and travel restrictions.
If you resolve some or all of the issues at mediation, a written agreement would then be drafted and signed. This agreement could include an additional clause to allow the agreement to be signed and certified over a video call.
Post separation expenses
Consider whether any post-separation expenses or adjustments need to be recognised. This might include a claim for occupational rent because your husband has been living in the property that you jointly own without contributing to its upkeep.
Next steps
I suggest you discuss with your lawyer the possibility of resolving your matter by private mediation. Ask your lawyer what the advantages and disadvantages of mediation are for your individual circumstance.
If you are frustrated that your partner does not appear to be motivated to progress towards a resolution, you could file proceedings in the Family Court. However, the average time to resolution from the issue of proceedings is about 13 months.
Shares
It is still possible to determine the value of your shares even though they are not listed on the NZ stock exchange. Find out the last price the shares were traded on a private basis. The last traded price will provide a reference point if it was relatively recent. If there is no market for the shares you could resort to valuation, but that often can result in a wide range of outcomes, is reliant on the availability of recent information and incurs the cost of an independent valuer.
You could agree to hold on to the shares together until they are listed on the NZX. I am not generally in favour of couples continuing to own property jointly after separation. It is preferable to have a clean break in relation to all their assets and debts. However, if there was an agreed date at which the assets were going to be sold or transferred then that option could be sensible.
You need to have a property-sharing agreement that outlines what would happen if one party wants to sell, either to the other party or privately. Consider how the valuation process would work if one party was to sell their interest in the shares to the other party and what valuation method would be used.
Summary
It has become increasingly common for relationship property matters to be resolved when the other party is in another country or city. Usually, the most efficient way to resolve disputes is through mediation. This can be done remotely over video conferencing such as Zoom.
- Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.
