22 June 2016

Relationship Property: Roberts v. Henderson

Passing a Taranaki farm from parents to son was carefully structured with the result he was $1.8 million better off after his marriage subsequently foundered.   A loan back to the parents’ family trust when purchasing farming assets was later gifted to the son and remained his separate property.
The identity of husband and wife was disguised in a High Court relationship property dispute to preserve their anonymity with each given an alias.  The court was told the two were married for fifteen years, working hard to acquire and build up a dairy farm.  In 2008, some 112 hectares was purchased by their family trust from the husband’s parents in two separate transactions.  The price payable was secured by two mortgages: one for just over $1.7 million; the other for $1.8 million.  His parents then gifted the $1.8 million mortgage to the husband personally.  As debtors under this mortgage, the husband’s and wife’s family trust owed $1.8 million.  This money was now owed to the husband as new owner of the mortgage.
At the time the marriage ended there was very little by way of relationship property.  The farm was heavily mortgaged.  The wife argued she was entitled to a share of the $1.8 million mortgage now owned by her former husband.  She said this mortgage was transferred to the husband alone in order to defeat her rights under the Property (Relationship) Act.  Justice Dunningham said the Act enables recovery of relationship assets removed from the asset pool or diverted from becoming relationship property.  In this case, the wife had no proved entitlement to share in ownership of the mortgage, she said.  It was the husband’s separate property and had never lost this status.  Separate property can become relationship property if intermingled with relationship assets. 
Roberts v. Henderson – High Court (22.06.16)

16.096