Sometimes pets are used as "leverage" in relationship property disputes. Photo / 123rf
Sometimes pets are used as "leverage" in relationship property disputes. Photo / 123rf
OPINION:
Q: My partner and I are having some issues in our relationship. I have been considering separation. We have been together for 15 years and have no children together. We do have two dogs that are like our children and I am worried that I will not be ableto see them if we separate. The dogs have always spent more time with me as I work from home as an artist, and I want to obtain sole custody of our dogs moving forward. How do I go about this?
I have produced a huge amount of artwork over the years. There are a number of paintings that are in the home workshop. I operate my business through a company and my marketing is largely through my website and social media – mostly Instagram and TikTok. I have over 5000,000 followers on Instagram and a similar number on TikTok – are they worth anything?
Lastly, if I keep the family chattels, how much do I have to pay my partner? They have an insurance value of $100,000 but I don't feel they would be worth this much because most of the chattels were purchased more than 10 years ago and have been damaged over the years.
Assets you own together are your "relationship property". Generally, when a couple separate, relationship property is divided equally unless there is a legal agreement that says otherwise. Common examples of items that would normally be considered relationship property are:
• The family home, regardless of when it was acquired and whose name it is in; • The family vehicles; • Holiday homes; • Investments; • Retirement funds earned during the relationship (including KiwiSaver); • Bank accounts, if the funds in the account have been earned during the relationship, even if the accounts are in separate names; • Debts incurred during the relationship for joint purposes; and • The family pets.
Separate Property
There are a few other types of property which are considered separate and not divisible in a separation:
• Bank accounts which existed prior to the relationship, that are kept separate and do not contain income earned during the relationship; • The portion of retirement funds you amassed prior to the relationship; • Gifts for the sole use of the recipient, such as jewellery; these would include engagement and marriage rings; • Family heirlooms and taonga; and • Debts incurred before the relationship started eg student loans or credit card debt.
Your dogs are considered a "family chattel" and are part of your relationship property pool – which is owned equally by you both.
Custody of your dogs would form part of your relationship property negotiations. You might also wish to discuss how vet expenses or other care costs will be handled going forwards.
In some circumstances, much-loved pets can continue to be jointly owned, and have scheduled time with both parties. However, I have rarely seen people sharing custody of dogs after separation.
If you can't come to an agreement on elements of your relationship property, including your dogs, then ultimately you can end up in a family court hearing.
Trust me, it will save you time and money if you can both be civil to each other and find common ground without going to court.
Be aware that sometimes pets are used as leverage; one party "concedes" ownership of the cat or dog in exchange for a greater amount of the relationship property.
Your Art Company
Your paintings and art company should have an up to date valuation. Photo / 123rf
Often in a separation, you will need external valuations for bigger items such as property, investments and companies.
The paintings and your company will need a valuation, or you could agree on a valuation yourselves. The cheapest way to get a valuation is to have a joint valuation by an agreed accountant.
Your large social media following has value and would be considered goodwill. This will be factored into the valuation by the accountant.
Paintings
I understand that you have been painting for about 20 years. The paintings you have produced over the course of the marriage are relationship property. If you created paintings before the relationship, that would normally be considered your separate property. However, this would depend on whether you have gifted any of those paintings to your partner and whether they have been displayed in the house. This is a topic where specialist legal advice would be helpful.
There has been a controversial recent High Court case about this issue where the artwork copyright was considered relationship property in an artist's divorce case. The High Court reasoned that because the artwork was created during the course of the relationship, the copyright that accompanied this became relationship property as it also came into existence during the relationship.
Copyright is considered property and there is nothing to suggest it should be treated differently from any other property produced during a relationship.
The judge said value in copyright would be a real challenge, but it seemed necessary to ensure that there would be equal division. It was likely that expert witnesses would be required to give evidence to help a court determine their value.
Chattels
You can allocate agreed values to furniture and chattels, or just divide them between you, item by item, on a practical basis.
The insurance value of chattels is often far greater than the actual market value, particularly if the furniture items are over 10 years old and have some general wear and tear.
We take the value of chattels at current market value. In other words, how much would you get for the item if you listed it on Trade Me?
The same is true for motor vehicles. The correct price is the price someone will pay for them on arm's-length basis.
Summary
Any property acquired while you are together in a recognised relationship, no matter how big or small, is jointly owned. You need to think carefully about your dogs, artwork and business valuation.
I would encourage you to get counselling because the grass is not always greener on the other side. However, if you do decide to separate, communication counselling can help with opening up communication channels to discuss your separation. It is helpful if you and your partner are able to narrow issues between yourselves rather than engaging lawyers to resolve the more complex aspects of the separation such as the value of the company and paintings. It will save you time, money and stress if you are able to reach an amicable solution between yourselves.
•Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.
