Relationship Property and Trusts Term Paper by Metro

Explores the relationship of trusts to the Property (Relationships) Act 1976 in the New Zealand legal system.
# 151843 | 4,820 words | 26 sources | MLA | 2012 | NZ
Published on Oct 14, 2012 in Law (Family) , Law (Property)


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Description:

This paper explains that, under New Zealand law, newly popular family trusts are creating several issues as to partners claiming such assets upon the break-down of their relationships because they often find themselves unable to make such claims in the ordinary way under the Property (Relationships) Act 1976. Next, the author reviews the present abilities of the courts to deal with trusts under such circumstances and analyzes each mechanism as to whether there is certainty and consistency in the law. The paper ascertains if there is a fair balance between trust and relationship property 'rights' and if either of these should outweigh the other and determines which reform and changes are required to create an inter-relationship between relationship property and trusts. Quotations are included.

Table of Contents:
Introduction
Mechanisms The Court Can Use to Access Trust Assets, Which Would Otherwise be Relationship Property if not Held on Trust
Property (Relationships) Act 1976, s 44: Dispositions May be Set Aside
Property (Relationships) Act 1976, s 44C: Compensation for Property Disposed of to Trust
Property (Relationships) Act 1976, s 33(3)(m): Order Varying the Terms of a Trust or Settlement
Sham and Illusory Trusts
'Bundles of Rights'
Family Proceedings Act 1980, s 182: Court May Make Orders as to Settled Property Etc
Alternative Mechanisms Available to the Court at their Discretion
Is the Present Legal Framework Dealing with the Inter-Relationship of Relationship Property and Trusts Sufficiently Certain and Consistent?
Property (Relationships) Act 1976, s 44: Dispositions May Be Set Aside
Property (Relationships) Act 1976, s 44C: Compensation for Property Disposed of to Trust
Property (Relationships) Act 1976, s 33(3)(m): Order Varying the Terms of a Trust or Settlement
Family Proceedings Act 1980, s 182: Court May Make Orders as to Settled Property Etc
Other Issues Relating to Certainty and Consistency in the Inter-Relationship
Is There a Fair Balance between Trust and Relationship Property 'Rights'? Should Either Override the Other? Is Any Reform Required?
Conclusion

From the Paper:

"If an applicant has failed in their attempt to set a disposition aside under section 44, then section 44C is available to them as a back-up. This section may only be used in the event of failure under section 44 though . Commonly, this section is used where an applicant has failed or was unable to show an intention by the respondent to defeat their claim or right to property disposed of. There are several requirements which Nation v Nation set out as necessary for an application under section 44C. Such are as follows; the disposition must have been to a trust, of relationship property only, made after the relationship began, by either party to said relationship (not a third party), where section 44 does not apply, and which the effect created has one of defeating a claim or right of one of the partners only (not both) .
"If these requirements are met, then from section 44C(2) a court has the power to make compensatory orders from assets outside the trust, or from income within it if there is not sufficient enough assets. The first compensation a court will look to make is a payment of money or a transferral of property that is outside the trust . However, if there is not enough property to compensate a partner from either of these, the court can rely on section 44C(2)(c) where a trustee of the trust in question can be ordered to pay trust income to the partner being compensated; this is a back-up clause only used if there is not enough property outside the trust, and cannot be used if there is sufficient property outside of the trust."

Sample of Sources Used:

  • B v M [2005] NZFLR 730
  • B v X [Child Support] [2011] NZFLR 481
  • Buchanan v Wales (2008) 27 FRNZ 709
  • DKH v CAC Family Court, Tauranga, Fam-2008-070-000426, 19 February 2010
  • F v W High Court, Wellington, CIV-2009-485-000531, 3 August 2009

Cite this Term Paper:

APA Format

Relationship Property and Trusts (2012, October 14) Retrieved June 25, 2019, from https://www.academon.com/term-paper/relationship-property-and-trusts-151843/

MLA Format

"Relationship Property and Trusts" 14 October 2012. Web. 25 June. 2019. <https://www.academon.com/term-paper/relationship-property-and-trusts-151843/>

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