Buy out: Selling Property after Separating

Can you still keep, or get rid of, your family home or investment properties after you separate? Of course!

 

What is a “Buy Out”?

A mortgage buyout is one solution if you and your partner separate but still have mortgage obligations and one partner wants to keep the house. A Mortgage Buy-Out involves one partner purchasing the equity interest of the other.

 

But make sure you have this conversation with your partner early – mortgage buyouts require both owners to co-operate.

 

Steps to buying your partner out

To be able to buy your ex-partner out, you need to be able to take on the whole mortgage on your own and have enough to pay your partner for his or her share of the equity in the property.

 

  1. Get legal advice
  2. Get valuation on the family home or properties to be divided
  3. Agree on your partner’s “buy-out price”
  4. Get a separation agreement certified. This is legal and binding on both of you rather than just a “hand-shake” deal with risks!
  5. Settle your new mortgage (if necessary)

 

Can you afford it?

The first question you should ask yourself is if you are financially in a position to afford the mortgage payments. Secondly, will the bank agree to you being the sole mortgagee? Note that when you separate, you are (usually) splitting half the proceeds from whatever you both sell – including the Family Home. You are left with half (or thereabouts) and must start a new life on this amount. Think carefully before committing to selling the Family Home. It may be a better financial decision to buy-out your partner – or not depending on your own financial situation.

 

Is Your Partner buying out your share?

If your partner wants to keep the home, make sure you obtain an appraisal if you cannot agree on the value of the Family Home. Also, you may have to adjust to the fact that it is no longer your home and this may mean unfamiliar people living in it. obligations to your lender?

 

Your obligations to your lender

If you have been the party released from your mortgagee obligations, ask for the bank’s proof that they have discharged you from your obligations i.e. check you are no longer on the mortgage. This may need to be done after you have obtained Separation Agreement as some banks request to see this for obvious reasons before they take one partner’s name off the mortgage.

 

What are your other options if you cannot afford the mortgage yourself?

If your mortgage payments are almost paid off and you and your partner are on good or amicable terms then you could agree to continue to pay the mortgage until it ends. This is ideal and possibly not the option many can take. In this situation, it may still be untenable for your partner to stay living in the house while you both pay off the mortgage. In this case, the partner who is having their share bought out, will have to negotiate rent.

 

Can you substitute someone else on the mortgage?

It will be hard to sell the Family Home with negative equity. Unless you are able to negotiate other terms with your mortgage provider then you will both continue to be liable for the mortgage repayments. Potentially you could substitute your partner for other family members or friends who are interested or able to support you in the mortgage if you decide to keep the house. If you decide to go with this option, it is a good idea first to have already brought-out your partner.

 

 

Buy Out Divorce Separation

 

 

The Family Home is relationship property and after a divorce, you may be thinking about buying out your partner’s share to keep it.Photo by rawpixel.com from Pexels 

What is the “Buy-Out”?

A Buy-out means you must identify the equity in the property – the difference between the mortgage balance and what the property is currently
worth. It’s not always going to be an equal split when you separate from your partner. This may be the case if one partner’s family helped to improve the value of your home by providing money for renovations, or perhaps one of you contributed more to the deposit of the home.

 

How do you calculate the “Buy-Out” price?

But assuming that you both contributed equally to both the deposit on the home, and the recurring mortgage payments, this will be a simple calculation. To clarify, you take the current value of the property (note that you may both want to get property Valuers to obtain an accurate market value of the property), subtract the amount outstanding on the mortgage, and any other payments which were not contributions equally by you both, and then divide the remaining amount by two.

 

Example of Buy Out calculations

So, for example, if the property is now worth $500,000 and there is, say, $250,000 left to pay on the mortgage, you would need to find $125, 000 to buy out your ex-partner’s share of the property. If, for example, the property is worth $500,000 but $100,000 was provided as a loan by your parents to renovate the house or for the deposit, you will need to pay this back first. Say you have no mortgage on the house and you were to divide the sale of proceeds. This means you and your partner will be splitting $400,000 instead of $500,000. However, if you were to buy out your partner’s share, and there is still $250,000 left to pay on the mortgage, you will need to pay out the $100,000 first. Assuming the loan was a gift from your parents, this means that you will need $150,000 to buy your partner.

 

How to get a valuation on your Family Home or other properties

The Buy-Out Price above depends on the value of the home if you are keeping the Family Home. Note that your bank may also want you to get a valuation from a registered property valuer before they refinance the mortgage to you.

 

Valuation

It is important to get a valuation from a certified registered valuer.  This will determine the market worth of a house or property. A registered property valuer combines all their knowledge and experience with their observations and research undertaken of the property and its surrounding area, and determines the market value.

 

Cost of a valuation

A property valuation costs approximately $500 – $800 plus GST. However, a valuation does have a limitation period. This means it will remain “current” only for a limited time. This is normally anywhere between three to six months. Your ex-partner may agree to split the cost of the valuation.

 

Where to find a registered valuer?

Just by doing a Google search, we were able to find the following registered valuers:

Another good tool may be Property valuation, a website which allows you to find a registered property valuation near you. Note that there is also a Valuers Registration Board. You can go to them if you have a complaint or any questions such as the standing of the valuers you are going to. If you want to get the experts in, a registered property valuation can be done and costs from $500. If you do not want to spend this fee, there are other options and these are explored below.

 

How to work out a Family Home’ Market Value yourself

 

Real estate agents

You can ask Real Estate agents in your area who are experienced and acquainted with properties which are similar to yours. Perhaps ask for a few different estimates from local real estate agents and take the average of these. Just be aware that if these agents are only looking at comparable sales in your area, you will want to take into account differences such as location, exterior presentation, and conditions of the property and any changes in the CV values.

 

Online sources

In comparison, a more objective estimate may come from the property’s Quotable Value (QV). QV has some great online resources there too. There are both free and paid options to purchase local sales reports which may include your property. Sometimes the rateable value (government valuation of the house) will be accurate as to market value but it cannot be relied on alone. You can find out rateable value information on your local council’s website for free.

 

Best alternative

Unless a combination of both of the above methods will give you a more accurate estimate of market value you can both rely on, you risk undervaluing or overvaluing the buy-out. In short, get as many assessments as you can possibly afford!

 

Get this written down in a Separation Agreement

Getting the above formalised in an agreement does not have to be expensive. At CODR, the cost of the Separation Agreement is $172.50. The cost of certification is proportionate and costs no more than a couple of thousand for both you and your partner. Most importantly, whatever you agree to do with the property, you both need independent legal advice. This protects all parties and stops one partner from lodging a caveat or notice of claim later on which can affect the freedom you have with the property. After that, it may also be helpful when it comes to applying for finance to show them this agreement as some lenders may be wary of unresolved relationship property issues.

 

Certificate of Title

Firstly, it is important to get a copy of the certificate of Title of your property to check whether your name is on it. Importantly, you will need to get your partner’s name off the Title to the property once they no
longer have any interest in it. For instance, if you do not do this, your partner could put a registered interest against your property (a caveat). In other words, this is a notice that someone else has an interest in this property. This cannot be lifted unless by consent or by a hearing.

 

What if my name isn’t on the Title?

Meanwhile, if your name is not on the mortgage or deed of the house then that does not mean you have no rights or claims to the property. This means you should talk to a lawyer. If you have been living in the property or are in a de facto relationship with your partner, this means the Family Home may be relationship property – unless you have a prenuptial agreement or contracting out an agreement in place.

 

After the Buy-Out: Pay your partner’s Buy-Out Price

Above all, pay out your partner the buy out as you have agreed.

 

After the Buy-Out: Refinance the Mortgage

As a result of the Buy out, you will likely want to or may need to refinance the mortgage on your Family Home.

 

Cost of a Separation Agreement

The cost of getting a Separation Agreement (or Contracting Out Agreement for that matter) is not expensive.

Certainly, it is less expensive than going to the Family Court for an order to divide up your relationship property.

If you are in a de facto relationship, you effectively have the option of an informal separation through getting a separation agreement which details how you will each divide your assets. This agreement needs to be certified by two independent lawyers.

After that, you may wish to register the separation agreement in the Family Court as a ‘consent order’ so that it becomes legally enforceable.

 

What if we are married?

But if you are in a marriage, you will need to get a divorce. This is done through an application which depends on whether you both agree to the divorce, or whether only one of you wants to get the divorce.

However, you will then also need a separation agreement detailing how you want to split your relationship property assets. Can’t agree on what is shared relationship property? See our article on what assets are usually deemed to be relationship property.

Above all, note that couples have a time of 12 months from when their marriage is dissolved by a court order to divide up their relationship property.

 

Variable legal cost of a Separation Agreement

The reason why there are differences in the costs of a separation agreement where you both choose separate lawyers is that this can turn into an adversarial process. Although your lawyer must be independent and act solely on your best interests, this should not be at the expense of an amicable separation where you and your partner have already agreed and decided on the process of splitting your relationship property assets.

The New Zealand law society has a guide on what you can expect to be charged for legal costs from our lawyer.

These costs can depend on the “importance and complexity of the matter, the nature of the work and how urgent it is, results achieved and the costs of running a practice, and any quote or estimate given, or fee agreement made at the outset”.

CODR does not have any disbursements as the entire process of certification is online.

 

Cost of the separation agreement (alone)

CODR enables you both to agree to terms which suit you and then to get this agreement drafted with the aid of an automation ‘bot’ via Autom.io. These bots ask you questions relating to your situation and puts the details you input into the agreement. You will then be able to download a Word document to edit if you have any changes to make on the final copy.

This takes out lawyers in the negotiation process which means it is both cheaper and perhaps a better way to preserve the relationship you have with your partner as no lawyers are involved to make the process tense.

However, if you were to get an agreement drafted by lawyers, there could be additional costs as each of your respective lawyers send the agreement back and forth with suggested edits or additions of clauses. CODR’s Separation Agreement only costs $172.50 online and this fee is payable directly on our website.

However, the cost of a legally binding Separation Agreement relates mainly to the certification costs of getting lawyers to independently provide advice as to signing the agreement.

 

After the cost of a separation agreement, is there a cost a ‘consent order’?

Yes. It currently costs $220 to the Family Court in order to make the agreement an enforceable order. If both of you entered into this willingly, it is likely to be made into a consent order.

However, it does note that you can ask the Court to You can ask the Court to cancel the fee and will usually be waivered where applicants qualify for legal aid. It is unclear whether the Court would also waiver the fee if you are a higher net-worth individual.

Furthermore, the benefits of going further to get a consent order after you have completed certification of the separation agreement is that it becomes enforceable by the court and if one of you doesn’t do what was agreed in the Separation Agreement, the Family Court can make the person pay a bond or compensation.

On the justice website, it notes that “if the person still doesn’t follow the Order, then they may get charged with a crime and could be fined or jailed.” Moreover, this can add greater protection to you than just getting the Separation Agreement on its own.

Although this is legally valid and binding, the other party not complying may mean that you are left out of pocket to try to enforce this through the Family Court or mediation. Therefore, if you have a doubt as to whether your partner will follow through with the separation agreement terms, get a consent order!

 

A comparison of costs when you must mediate

In the event in which you cannot get a separation agreement, because you and your partner or spouse disagree on the terms of the separation agreement, there is also the option of going to mediation. Note that this is different to a Family Disputes Resolution, which is a process that is Court-mandated if you choose to go to the Family Court.

Mediation is an option for couples who have separated but cannot agree as to their terms. The following is an example of one of the disputes we have dealt with at CODR, and a comparison of the likely court costs in a similar case:

CODR Court
Legal Fees $0 30-50k per party
Time Taken 95 working days Approx. 24 months
Total Cost Less than $10,000.00 Approx. $100,000.00

While this is not was not in regard to a separation and relationship property issue, this does show that CODR’s online process can help to expediate getting a finalized and binding separation agreement.

 

Cost of a Separation Agreement with CODR?

It’s a fact of life that every couple and their agreement is going to be different. However, CODR strives to provide our clients with a fixed fee. This does mean that we need to estimate and negotiate any fixed fees with our lawyer’s prior certification. We price this based on our experience of the complexity (on a sliding scale from standard to complex) of your situation and agreement terms. For standard certifications where couples have one stand-alone Family Home which are splitting the sale of proceeds from, we usually charge $1500 plus GST.

However, this does not include situations where couples have complex arrangements dealing with the Family Home, or if couples have multiple properties or trusts, or business shares. There is a myriad of situations in which CODR’s standard agreement does not take into account. Therefore, a good indication that your situation is more complex than our standard situations will be whether you have needed to edit or add in clauses to your Separation Agreement.  

This increases the costs of certification as our lawyers bill us for the time in which it takes them to prepare and then to conduct the certification – taking into account the legal advice they must give as part of the process. More complex assets or situations does mean more time needed in order to provide advice and to satisfactorily certify your separation agreement.

 

What can I expect to pay?

Most of our more complicated certifications for the Separation Agreement vary between $1500 – $2500 + GST, as an indication.

However, if for any reason your certification does not occur (one partner changes their mind last minute, or our lawyers advise the party not to sign as the terms are manifestly unfair), then CODR refunds the parties the fee paid less any costs already and reasonably incurred by our lawyers in preparing for and conducting the certification.

 

Can I get competing quotes from our own lawyers?

Yes. CODR does not have the exclusive right to certify your agreement and any party can use their own lawyers to certify. In other words, we think we provide a transparent fee and process in certifying.

 

Are there any on-going costs after separation?

You may need to get conveyancing or trust lawyers involved at this stage to deal with the execution of the terms of the separation agreement. For instance, you may need to change the name of the title on the property to one spouse, or you may need to get Deeds of Settlement drafted up if you have independent trustees which deal with your relationship property.

However, there are on-going costs that may arise out of your separation. For example, if you have children, you may have already detailed in your agreement how you will each contribute to child-care. In particular, child support becomes a topic of on-going costs.

Aside from child support, if your separation agreement deals with on-going maintenance where one party continues to support the other, these may also be the on-going costs involved. This could be in addition to any child support payable. It is also open to a spouse to apply to the Family Court for maintenance on top of child support so it is best to discuss this issue when you are getting the agreement.

 

What to do with your finances after you have separated

Sorted.org.nz have a guide on separation. This details a good step-by-step guide as to what you need to do in order to get your finances in order including:

  1. Set up new bank account
  2. Check your Credit Record and any debts are paid.
  3. Update any rental agreements
  4. Work out your net worth
  5. Create a new budget after adjusting to a change in income

In addition, it is important that if you have any joint debts that you might want to ensure your name is not on these after you have paid off your share (or whatever the case may be).

Similarly, before signing onto a new lease, to take your name off a shared lease, else you could be jointly liable for your partner’s debts or if anything goes wrong on this rental property.

 

Does CODR accept Legal Aid applicants?

Unfortunately, CODR does not currently provide legal aid services for separation agreements or certifications for couples which fall within the legal aid system. However, it may be in your best interest to head to a local Community Law Centre. They are likely to have a directory of services or lawyers who are skilled in this area to help. They detail whether they can provide services to you here and if you are eligible, they will direct you to the right Legal Aid lawyer.

Another useful resource is the Citizens Advice Bureau which answers some questions relating to separations and divorces here.  In short, although the cost of a separation agreement is never fixed, this article may be a definitive guide on what costs you should expect when separating.

How to challenge the equal division of your relationship property

When you separate, your relationship property assets are equally divided.

This is in the Property (Relationships) Act 1976 (“The Act”). To familiarise yourself with the fundamentals of the Act, refer to our article here

S 11 of the Act states that each spouse is entitled to equal shares in the:

  • Family Home
  • Family Chattels (e.g. furniture, boat, and dog)
  • And any other classified relationship property

The above would apply if you have no contracting out or separation agreement. However, there are exemptions to the equal division assumption, such as:

  • Extraordinary circumstances that make equal sharing “repugnant to justice”;
  • A short marriage;
  • A short de facto relationship;
  • Economic disparity between the spouse after separation;
  • Two homes that qualify as the family home;
  • One spouse sustained or diminished the value of another spouse’s separate property; and
  • One spouse satisfied personal debts out of relationship property.

Extraordinary Circumstances

The Courts may find that equal sharing would create extreme injustice.

In cases like these, the courts will divide relationship property according to the contributions made by each spouse.

Here are some examples of extraordinary circumstances that are “repugnant to justice”:

  • Wife financially and emotionally supported the family and the husband was an alcoholic;
  • Wife financially supported and provided everything in the marriage, took care of the child and provided the funds for her husband for further studies. His earning capacity was greatly enhanced during this relationship as she was more established.

Factors that courts will consider when assessing exceptions

  • Was there a gross disparity of contributions during the relationship
  • The length of the relationship. The general rule is, the longer the relationship has been the more intermingled property becomes
  • Was there any negative contribution such as one spouse acting in fraud, deceit or forgery towards their spouse.
  • Gross misconduct of a spouse. This could include someone who is very abusive and they damaged the property in question

Factors courts will not consider

  • The circumstances after the spouses cease to live together. For example, if one spouse after separation assumes the responsibility of maintaining the house and paying for its outgoings. Or if one spouse deserts the family and fails to maintain for them
  • If one party owns the family home, this is not “extraordinary”.

Marriages of short duration

This is when spouses have lived together for less than three years. The division of property would be to each spouse’s contributions to the marriage if the assets were:

  • Wholly owned or substantially by one partner; or
  • Assets owned by one spouse through succession, survivorship, as a beneficiary, or as a gift; or
  • One spouse contributed to the marriage disproportionately than the other.

Any other property or assets that fall outside of the above will be dealt with by the equal division rule.

De Facto Relationships of Short Duration

If there has been a de facto relationship of short duration where the de facto partners have lived together for less than three years or the court deems it to be a de facto relationship of short duration, then the Act will not apply. The exception to this would be if:

  • There is a child in the de facto relationship
  • One spouse has made a significant contribution to the de facto relationship

Each share will be determined according to individual contributions.

Economic Disparity  

This section applies if the courts decide:

  • After the relationship ends, the income of one spouse is likely to be higher; or
  • One spouse was better off due to their role during the relationship.

Factors that courts may have regard to when drawing this conclusion:

  • The likely earning capacity of each spouse
  • The responsibilities of each spouse for the ongoing care of children
  • Projected earnings of one spouse if they had scarified a career for the relationship
  • The enhanced earning capacity of one spouse because of their respective roles in the relationship
  • The age of each spouse

Two homes at the date when marriage or de facto relationship began

This applies during a relationship when each spouse owns a home that could be the family home. The courts will adjust the shares to relationship property to compensate for the inclusion of the home of only 1 spouse. This resolves any injustice that may have resulted.

As a result, this section is usually relevant for second marriages or ones that occur later in life where each spouse may own thier own house.

Sustained or diminished value of separate property

Sustenance is when one spouse’s property has been maintained by relationship property.

Large amounts of cases under this exception are related to farms. An example is where one spouse owns a farm that is separate property, but the non-owning spouse maintains the farm.

A Court will award compensation or displace equal sharing for this. But calculations in the past for this has been quite conservative.

Diminution is where separate property has been “materially diminished” in value by the one spouse’s actions. Courts may decide to diminish the shares of the other spouse as compensation.

Personal Debt satisfied out of Relationship Property

If one spouse satisfies their debts from the relationship property, the other may be compensated either by:

  • A greater share in relationship property; or
  • Some of the other spouse’s separate property is treated as relationship property; or
  • An order for one spouse to pay the other.

Talk to one of the CODR team today to see whether your situation fits one of the above.

This article was written by Ashley Yuan.

Challenging trust property owned by one partner

What are trusts and how do they apply to relationship property?

Firstly, even if you established the Trust, but your partner contributed to the assets, the Trust will not necessarily be separate property. This is true even if a third party established the Trust.

To clarify, this means that Trusts are not an absolute protection against relationship property. This will be determined using the standard test in relationship property laws.

Certainly a partner will have no interest in a trust unless you are a beneficiary of the trust or the trustees have given you a legal interest in the trust.

In other words, if you and or your partner have a vested or contingent interest in a trust, that interest will be sufficient to qualify as property under relationship property laws.

Relationship property laws make provision for some possible claims by the non-owning partner against these interests. So even if a distribution is classified as being your separate property, this may not necessarily protect you from claims.

If you are unsure whether you or your partner has a legal interest in the trust, talk to a lawyer. Alternatively, contact CODR and we may be able to help.

How does the current law deal with trusts?

At the moment, it is clear that simply owning assets in a trust is not an absolute bar from claims. However, if a trust is involved the Family Court has limited jurisdiction, and can refer matters to the High Court. But this can be an expensive and time-consuming process.

The law expressly allows for the trust-owned house to be included in some situations, such as:

  • If the house was transferred to the trust when the couple were in a relationship;
  • Even if the property was already in a family trust before the relationship commenced, if a loan is secured over the property and a partner made repayments;
  • If one party contributed to the “improvement” of the home, then they may have an ability to claim against the trust.

In addition, there may be other situations in which a Trust does not separate your property from relationship property.

What is changing?

In 2019, the Law Commission will suggest reforms to the relationship property laws in New Zealand which have not changed for over 40 years. In terms of trust, this may include allowing the Court to have wider powers with regard to the sharing of trust property.

Therefore, before entering into a relationship, entering into a relationship property agreement recording the manner in which you seek to have your property divided in the event of separation, will be important.

Relationship Property Overseas: How the law applies to you

It is becoming increasingly more common for long distance relationships to be the norm where partners may be based overseas. Consequently, many have assets overseas, and may be curious as to how the law handles the division of relationship property.

To begin, you should familiarise yourself with the Property (Relationships) Act 1976 (“The Act”) governing this area of law Generally, disputes over property situated overseas as long as they’re moveable and partners are domiciled in New Zealand, the New Zealand courts will have jurisdiction over it. The term “domiciled” means that at least one partner must consider New Zealand their home or place of residence.

 

What overseas property is within New Zealand’s jurisdiction?

Overseas assets are defined in s 7 of the Act as classified as either being movable or immovable. The section applies to immovable property that is situated in New Zealand, and movable property situated within New Zealand or elsewhere.

Examples of movable property include:

  • Bank savings
  • Superannuation
  • Proceeds of sale from immovable property
  • Family chattel

Examples of immovable property include:

  • Land
  • Debt
  • Leasehold interest in land

When is property moveable or immovable?

Generally, if it’s an movable property situated overseas, New Zealand has no jurisdiction.

overseas relationship property
Whether property overseas can be relationship property in New Zealand depends on whether it is moveable

Exceptions

Courts may decide under a property relationships proceeding to not enforce equal division of relationship property which is usually the presumption under the Act.

Here are 4 exceptions to the general rule and discretions made to the general rule against moveable and immovable property residing overseas:

  1. Discretion to overseas movables

Various factors influence whether courts will grant an order against someone who is not domiciled in New Zealand in respect to their overseas movables. These factors include but are not limited to:

  • practicality of costs in
    collecting relevant evidence and enforcing the order;
  • reasonableness of expecting a
    foreign respondent to defend themselves in proceedings in New Zealand; and
  • whether they make up a significant portion of relationship property.

  • A claim under private international law

Another exception is an action under private international law. This includes a claim between parties under contracts or equity. Equity was developed to supplement the common law where it is unfair.

  • Family Home

The exception to land can be made if the overseas immovable property was capable of being a family home at the time of the marriage or de facto relationship. In cases like this, courts would usually adjust the shares of one partners interest in the relationship property.

  • Agreement in writing

Parties not domiciled in New Zealand can agree in writing for the Act to apply to their moveable and immoveable property situated in New Zealand or overseas. Hence, the easiest way to ensure that you have control is to get a relationship property agreement.

Figuring out your rights and claims to a parties’ overseas property is tricky when the courts have traditionally determined the nature of your property. But even if a court determines an asset is an immovable overseas property, this might not defeat a claim for compensation.

This article was written by Ashley Yuan.