When is Your House the "Family Home"? / Will my House be Split 50/50?

A special status is given to the "family home" in relationship property disputes under the relevant legislation, the Property (Relationships) Act 1976 ("the Act").

If a property falls under the definition of "family home" (defined in Section 2 of the Act), it will be regarded as relationship property, and thus equally divisible between spouses or partners. This is regardless of when the property was acquired (purchased, inherited or gifted) even if it was before the relationship started.

When the Court is to determine whether a property is the "family home", its focus is on how the property was used during the parties' relationship, rather than how it was acquired. Under the Act, if the property was the dwelling house used by the spouses or partners as the main family residence either habitually, or from time to time, then it will likely be regarded as the family home.

The "family home" definition extends to any land, buildings and improvements that belong to, or are a part of the house, provided they have been used for household purposes.

If a couple are not living together in the same property at the time they separate, this will not necessarily rule out that property being considered the "family home" and consequently subject to equal division between the two. The Court considers the use to which the property is put leading up to the separation and not simply a 'snapshot' of whether it was the main family 'hub' on the date of separation.

In circumstances involving multiple properties that a couple (and family) use over their relationship, the Court will again consider what the main use    of each property has been throughout. Of note, once a property has the status of "family home" in accordance with the Act, this definition is not permanently attached to the property.  What may be the "family home" at one stage, can later lose such status, as for example the couple move out and rent the property to others and shift into another house themselves.

In the 2014 Family Court case of Thackwray v Thackwray1, the family regularly spent the summer seasons in one property and the winter seasons in another.  For seven years prior to separation one of the properties had predominantly been visited in order to carry out work on the property, as opposed to reside in it as the family 'hub'.  It was because of this, that the Judge held that it had ceased to have a "family home" character before separation.

Whether a property constitutes a "family home" and is therefore susceptible to the equal sharing regime under the Act, will depend on how it has been used.  Any determination in Court will be fact-specific, following an assessment of the particular context and circumstances at hand.  Similarly, in relationship property settlement negotiations, the use of a household or households will be significant.

We recommend seeking legal advice about whether any property owned by yourself or your partner, would fall under the "family home" definition of the Act and what your options may be in a relationship property dispute.

If you have any questions or concerns about this topic, please contact:

Peter Fuscic on (09) 306 6746 (pfuscic@mcveaghfleming.co.nz)

See our Expertise pages

Relationship Property

Separation and Divorce

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1    Thackwray v Thackwray [2014] NZFC 8702