district court logo

Sherman v Neilson [2022] NZFC 1915

Published 10 July 2023

Relationship property proceedings — post separation contributions — occupational rent — adjustments to recognise work undertaken — Family Violence Act 2018 — Property (Relationships) Act 1976, ss 1M, 1N, 2, 2G, 18B & 18C — Burgess v Beaven [2012] NZSC 71, [2013] 1 NZLR 129 — Cullen v Cullen [2017] NZHC 42 — E v G HC Wellington CIV-2005-485-1895, 18 May 2006 — C v C HC Auckland CIV-2007-419-1313, 26 June 2008 — Griffiths v Griffiths [2012] NZFLR 237 (HC) — Butcher v Haack [2012] NZHC 2991. The parties appeared to decide unresolved adjustments outside of the equal division of their relationship property. They had been married for five years, after which time the applicant left the family home, leaving the respondent living in the family home for a further 12 months. The applicant sought occupational rent for this post-separation use and the subsequent use of their rental property for seven years. The Court determined that it would not be fair to make an adjustment for occupational rent of the family home as the respondent had been solely responsible for all expenses from separation until it was sold, and he and the children had been entitled to stable and secure accommodation. Occupational rent of $37,759.64 was awarded to the applicant for the entire time that the respondent was in exclusive occupation of the rental property, reduced by the agreed amounts of contributions to their various properties. The Court rejected the respondent's claims for post-separation contributions. Real estate agent fees had not been incurred and there was no evidence to quantify the value of the parties' contributions of either party to prepare the rental property for sale. The value of a vehicle which had been purchased shortly before separation was disputed. The applicant had retained the vehicle but the respondent paid for its insurance. The car's value at the separation date was determined to be $15,160 by the Court, which was added to the relationship property pool to be divided equally. The same compensation principles were applied in relation to the vehicle insurance payments, and the respondent received an adjustment of $1228.89 — half the total payments made by him. The Court found that the evidence in relation to post separation expenditure lacked clarity, but awarded an adjustment in favour of the respondent for half of the post-separation withdrawals that the applicant had made from their joint bank accounts, to the value of $9418.75. On that basis, the Court ordered the respondent to pay $37,759.64 for occupational rent and the applicant to pay $10,647.64 for the car insurance and post-separation withdrawals. Judgment Date: 31 March 2022.