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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
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Experience:  32 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Good afternoon, Im a trustee of a Family Trust. There are

Resolved Question:

Good afternoon,
I'm a trustee of a Family Trust. There are also two more persons in it: my husband (the settler) and his son.
My husband and I have been married for over 7 years and we do not have a prenuptual agreement.
The Trust owns several properties, stocks and shares in NZ and overseas and also has several bank accounts.
My question 1 is what rights in terms of F/T property do I have in case of divorce? Question 2: what publications would you advise me to read to make myself familiar with F Trusts and rights of spouses.
Thanks you,
Angela
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

christhelawyer : HiWelcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear
christhelawyer : The Property Relationships Act does have some protection where the are family trusts. The section says, in so many words, that where property has been placed in the trust during the relationship, then you can get compensation.
christhelawyer : 44CCompensation for property disposed of to trust(1)This section applies if the court is satisfied—(a)that, since the marriage, the civil union, or the de facto relationship began, either or both spouses or partners have disposed of relationship property to a trust; and(b)that the disposition has the effect of defeating the claim or rights of one of the spouses or partners; and(c)that the disposition is not one to which section 44 applies.(2)If this section applies, the court may make 1 or more of the following orders for the purpose of compensating the spouse or partner whose claim or rights under this Act have been defeated by the disposition:(a)an order requiring one spouse or partner to pay to the other spouse or partner a sum of money, whether out of relationship property or separate property:(b)an order requiring one spouse or partner to transfer to the other spouse or partner any property, whether the property is relationship property or separate property:(c)an order requiring the trustees of the trust to pay to one spouse or partner the whole or part of the income of the trust, either for a specified period or until a specified amount has been paid.(3)The court must not make an order under subsection (2)(c) if—(a)an order under subsection (2)(a) or (b) would compensate the spouse or partner; or(b)a third person has in good faith altered that person's position—(i)in reliance on the ability of the trustees to distribute the income of the trust in terms of the instrument creating the trust; and(ii)in such a way that it would be unjust to make the order.(4)The court may make 1 or more orders under subsection (2) if it considers it just to do so, having regard to—(a)the value of the relationship property disposed of to the trust:(b)the value of the relationship property available for division:(c)the date or dates on which relationship property was disposed of to the trust:(d)whether the trust gave consideration for the property, and if so, the amount of the consideration:(e)whether the spouses or partners, or either of them, or any child of the marriage, civil union, or de facto relationship, is or has been a beneficiary of the trust:(f)any other relevant matter.Section 44C: inserted, on 1 February 2002, by section 51 of the Property (Relationships) Amendment Act 2001 (2001 No 5).Section 44C(1)(a): amended, on 26 April 2005, by section 3(1) of the Property (Relationships) Amendment Act 2005 (2005 No 19).Section 44C(1)(a): amended, on 26 April 2005, by section 3(4) of the Property (Relationships) Amendment Act 2005 (2005 No 19).Section 44C(1)(b): amended, on 26 April 2005, by section 3(1) of the Property (Relationships) Amendment Act 2005 (2005 No 19).Section 44C(2): amended, on 26 April 2005, by section 3(2) of the Property (Relationships) Amendment Act 2005 (2005 No 19).Section 44C(2)(a): amended, on 26 April 2005, by section 3(2) of the Property (Relationships) Amendment Act 2005 (2005 No 19).Section 44C(2)(b): amended, on 26 April 2005, by section 3(2) of the Property (Relationships) Amendment Act 2005 (2005 No 19).Section 44C(2)(c): amended, on 26 April 2005, by section 3(2) of the Property (Relationships) Amendment Act 2005 (2005 No 19).Section 44C(3)(a): amended, on 26 April 2005, by section 3(2) of the Property (Relationships) Amendment Act 2005 (2005 No 19).Section 44C(4)(e): substituted, on 26 April 2005, by section 3(4) of the Property (Relationships) Amendment Act 2005 (2005 No 19).
christhelawyer : You can read the act at http://www.legislation.govt.nz/act/public/1976/0166/latest/DLM441757.html
christhelawyer : So what you can claim, is this property, although if you are a beneficiary under the trust you can also claim under trust law.
christhelawyer : As for reading to assist, the Family Court website has some material. http://www.justice.govt.nz/courts/family-court/
christhelawyer : Most public libraries have some text books on Family Law. Lexis Nexis publish a useful text, but it costs about $200, so check the library first.
Customer:

Thanks very much. I'm at work now. Copied your answer with the links so will try to make sense of it later :-) Regards, A

christhelawyer : Feel free to ask more
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 19133
Experience: 32 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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