The division of farms and related property under the Matrimonial Property Act 1976
Frawley, Michael William
There are a number of inherent difficulties in the application of the Matrimonial Property Act 1976 to farms and related property. This Thesis has undertaken an examination of the effect of that Act on such farm property and in particular to: (a) The effect of having the matrimonial home on the farm property and the effect of Section 12. (b) What factors determine whether the farm property is to be classified as matrimonial property, which is prima facie divided equally between the spouses, or separate property, which prima facie remains the property of the owner spouse. (c) The effect of increases in value of the separate farm property, either with or without the influence of the non-owning spouse. (d) The effect and implications of estate planning and gifting programmes and the influence the Matrimonial Property Act has. (e) The effect of livestocks value, numbers during the marriage and the classification of such livestock. (f) What factors are taken into account in the division and valuation of the various types of matrimonial property and what policies effect the date of that division. It was concluded after an examination of the various Sections of the Act and related cases that if either or both spouses own the land upon which the homestead stands, that is the matrimonial home and its related area, that homestead will be divided equally between the spouses after deducting any allowable debts. Any divergence from equal sharing would be rare. Likewise the remainder of the farm property will usually be classified as matrimonial property and subject to equal sharing, if it has been acquired directly or indirectly by the joint or several efforts of the spouses during the marriage. If the remainder of the farm property was acquired prior to the marriage or acquired by way of a gift or inheritance during the marriage, that proportion of the farm property will remain the separate property of the owner or donee spouse so long as it does not become intermingled with matrimonial property. An exception in this area, is that property past for valid consideration during the marriage will be classified as matrimonial property, and therefore liable to equal sharing as the vital gift element of Section 10 is absent. The Courts have countered this position by classifying such property as a greater contribution to the marriage partnership in favour of the donee spouse which in turn justifies that spouse in receiving a greater percentage of the matrimonial property on division. Any increase in the value of any farm property during the marriage due to the use of matrimonial property farm income or due to the efforts of the non-owner spouse will usually result in that increase of value being classified as matrimonial property and therefore subject to equal sharing. In a marriage of substantial duration, where the farm has been actively farmed by either or both spouses, it will usually be impossible for any livestock to retain its original designation as separate property, due to its natural turnover in numbers and sales, especially where that livestock has been mixed with matrimonial property livestock. Finally, it was concluded that the date for the division of the matrimonial farm property between the spouses will not be substantially postponed by the Court unless there are special mitigating factors. It is submitted that this Thesis provides a framework or guideline which maybe used by the layman or professional alike to determine the effect of the Matrimonial Property Act 1976 on farms and related property.
Advisor: Waghorn, Gayle
Degree Name: Master of Laws
Degree Discipline: Law
Publisher: University of Otago
Research Type: Thesis
iv, 79,  leaves :ill. ; 30 cm. Includes bibliographical references. University of Otago department: Law.