17 July 2017

Relationship Property: White v. Kay

The High Court set aside a 100:0 relationship property agreement favouring Michael White after a 28 year de facto relationship came to an end.  The clear power imbalance between spouses and a deliberate failure to identify property covered by the agreement when signed meant his former spouse Maree Kay was entitled to a half share in all relationship property now valued in total at more than one million dollars.
Ms Kay is entitled to a half share in her former husband’s assets: the former family home in Smart Road, New Plymouth; all his bank accounts; five vehicles and shares in his company Contact to Contacts Ltd.  These assets have yet to be valued.
The court was told the two lived in a de facto relationship from the mid-1980s to 2012.  Parting was described as fairly amicable, coming after their daughter reached age eighteen.  When Ms Kay left, she took her car and $20,000 cash given her by Mr White at her request.  Two years later, she took action claiming a share of relationship property.  Ms Kay had signed a relationship property agreement in 2004, agreeing she would receive nothing if their de facto relationship came to an end.  An independent lawyer who witnessed her signature advised against signing.
Courts have power under the Property (Relationships) Act to set aside agreements which are unfair or unreasonable when signed or have become unfair and unreasonable in the light of subsequent events.  Justice Ellis ruled the agreement was unfair from its inception.  At the time she signed, Ms Kay had lived with her spouse for twenty years.  She had existing rights to a share in the family home.  She had raised their child.  She had supported her husband domestically while he had grown his business and property interests.  She had spent her own meagre earnings on the family’s day-to-day expenses.  She worked for a time in a sewing factory and when their daughter was older worked as a caregiver in a local rest home.  The assets Mr White allowed her take on separation amounted to less than three per cent of his net worth.
Justice Ellis ruled the relationship property agreement was poorly and opaquely drafted to the extent it would not fully inform a lawyer giving independent advice on the merits of signing.  The agreement did not identify or value the separate property then in existence.  It suggested misleadingly that Ms Kay held separate property in her own name.  It did not in any way shield Ms Kay from her husband’s debts; Mr White’s stated justification for the 100:0 split.
White v. Kay – High Court (17.07.17)

17.080