Brenssell v Brenssell CA113/96 [1997] NZCA 317; [1998] NZFLR 28; (1997) 16 FRNZ 41 (25 August 1997)

Last Updated: 28 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 113/96

BETWEEN BRENSSELL

Appellant

AND BRENSSELL

Respondent

Coram: Richardson P Gault J

Keith J

Hearing: 5 August 1997

Counsel: A L Andersen and J E MacKnight for Appellant

W D C Alcock for Respondent

_{Judgment: 25 August 1997}

_{JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P}

This matrimonial property appeal from the judgment of Tipping J of 24 July

1995 raises five issues. Three are inter-related and concern the classification under the judgment of shares in two farming property companies and the respondent wife's current account in one of those companies as separate property. The fourth is whether the order for unequal sharing of matrimonial property, except for the matrimonial property home allowance, (two-thirds to the wife and one-third to the husband) was justified. The fifth is whether the matrimonial home allowance of, in effect, $30,000 was a sufficient sum.

Background

Mr and Mrs Brenssell married on 24 October 1966 and separated on or about

4 May 1991. They had three children, a daughter born 26 September 1968 and two sons born 1 February 1983 and 21 April 1988. When they married Mr Brenssell had a motorcar but no other assets of significance and, except for the matrimonial home at Waikouaiti, purchased in 1969 for $6,000, he did not have any other assets in his name before he and his wife entered into a farming partnership in September 1989. By contrast, Mrs Brenssell received substantial funds from her family, which of course came to her as her separate property. Her mother had died in 1961 and Mrs Brenssell's share in her estate vested in 1966 when she turned 21. Over the next

10 years she also inherited further sums totalling $7,000 from other members of her family. Her major asset was a shareholding in a newspaper company which she sold in 1986 for over $110,000 and from which she had received dividends throughout. And in 1969 she had provided the equity of $3,500 for the purchase of the matrimonial home.

At the time of the marriage Mrs Brenssell's father, Mr J O Douglass, farmed two properties near Waikouaiti: "Tumai" through a company called J O Douglass Limited ("JOD") and a much less valuable "Mt Watkins" through a company called Dougbury Farm Limited ("DFL"). In October 1972 Mrs Brenssell received 5,000 of the 10,000 B shares in JOD by distribution from a family trust. Her brother received the remaining 5,000 B shares. Her father owned the controlling A shares in that company.

Mr Douglass continued to farm the properties until his death on 2 September

1987. Mrs Brenssell and her brother each inherited one half the shares in DFL. The will also bequeathed the A shares in JOD to such one of the two children,

Mrs Brenssell and her brother, as should become the owner of all the remaining shares in the company and should continue to hold and farm Tumai as a family property. Such child also had the option to purchase the testator's livestock at value and in the meantime the livestock was to be bailed to JOD. Subject to the life interest of Mr Douglass's second wife, the residuary estate went in equal shares to Mrs Brenssell and her brother.

Mr Brenssell was a farm worker. Over the years he had a considerable number of shepherding jobs at various places and in later years when they were living a distance from Waikouaiti they rented out the matrimonial home. Mrs Brenssell also worked when she could to support the family income. Throughout the marriage she handled all financial and business matters. Mr Brenssell did not operate a cheque book. He had never been "to town", i.e. Dunedin, until he went to a solicitor's office to sign a mortgage document relating to the acquisition of the B shares in JOD. He was content to leave everything of that kind in her hands. Tipping J found, and it is not in dispute, that he did not have and had never had any grasp or understanding of business affairs.

Mr and Mrs Brenssell returned to Waikouaiti in 1986 and worked part-time on Tumai. Mr Douglass died on 2 September 1987 and from 1988 Mr and Mrs Brenssell managed the farm. In September 1989 they formed a farming partnership but without a deed of partnership and without agreement as to its duration. It was therefore in law a partnership at will terminable by either party on appropriate notice. The partnership was formally dissolved by notice given by Mrs Brenssell about a year after the separation. The notice was dated 11 May 1992 and dissolved the partnership as at 30 June 1992.

Mrs Brenssell's brother was working and living in Western Australia. She purchased his B shares in JOD and his shareholding in DFL. In consequence of

holding all the B shares in JOD she became entitled under her father's will to receive the A shares. She paid out her brother from $50,000 withdrawn from the partnership account and a mortgage over JOD's land initially to a solicitor's nominee company guaranteed by Mr and Mrs Brenssell (to make up two shareholders, Mr Brenssell had one share in the company). Mr Brenssell says that because of the way in which the share purchase from Mrs Brenssell's brother was funded, and the link in the will between A and B shares in JOD, all the shares in both cases except for the 5,000 B shares in JOD which she had held since 1972 were matrimonial property.

When the farming partnership of Mr and Mrs Brenssell started Mrs Brenssell introduced money or assets totalling almost $180,000 whereas Mr Brenssell introduced assets worth only $8,300. The partnership purchased its initial stock and plant from Mr Douglass' estate and also from JOD. It also leased the farms from the two companies, that is JOD and DFL. Following the dissolution of the partnership its assets were sold to JOD as at 1 July 1992. The partnership accounts were drawn on the footing that the original sums were capital sums contributed by the partners. The accounts were also drawn on the basis that each partner's account, called a current account, was a blended one representing a mixture of both capital and revenue debits and credits. Mrs Brenssell contended in the High Court that what was left of her original capital input calculated at $79,876 should be paid to her as her separate property.

Finally, Mrs Brenssell's current account in JOD had a credit balance at separation of $14,149. It is common ground that it has the same classification status for matrimonial property purposes as the purchased shares.

The disputed classification of shares: the statutory provisions

The material provisions of the Matrimonial Property Act 1976 are s8(c) and

(e), s9(1) and (2), and s(10(1). They provide:

8. Matrimonial property defined - Matrimonial property shall consist of - ...

(c) All property owned jointly or in common in equal shares by the husband and the wife; and ...

(e) Subject to subsections (2) to (6) of section 9 and to section

10 of this Act, all property acquired by either the husband or the wife after the marriage.

9. Separate property defined -

(1) Separate property means all property of either spouse which is not matrimonial property.

(2) Subject to subsection (6) of this section and to sections

8 (ee) and 10 of this Act, all property acquired out of separate property, and the proceeds of any disposition of separate property, shall be separate property.

10. Property acquired by succession or by survivorship or as a beneficiary under a trust or by gift -

(1) Property, being -

(a) Property acquired by succession or by survivorship or as a beneficiary under a trust or by gift from a third person; or

(b) The proceeds of any disposition of property to which paragraph (a) of this subsection applies; or

(c) Property acquired out of property to which paragraph (a) of this subjection applies, -

shall not be matrimonial property unless, with the express or implied consent of the spouse who received it, the property or the proceeds of any disposition of it have been so intermingled with other matrimonial property that it is unreasonable or impraticable to regard that property or those proceeds as being separate property.

The material provisions of the Partnership Act 1908 are ss27(a), 23, 24 and

47(b). They provide:

27. Rules as to interests and duties of partners - The interests of partners in the partnership property, and their rights and duties in relation to the partnership, shall be determined, subject to any agreement (express or implied) between the partners, by the following rules:

(a) All partners are entitled to share equally in the capital and profits of the business, and must contribute equally towards the losses, whether of capital or otherwise, sustained by the firm.

23. Partnership property -

(1) All property and rights and interests in property originally brought into the partnership stock, or acquired (whether by purchase or otherwise) on account of the firm or for the purposes and in the course of the partnership business, are called in this Act "partnership property", and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement.

(2) Provided that the legal estate or interest in any land which belongs to the partnership shall devolve according to the nature and tenure thereof and the general rules of law thereto applicable, but in trust, so far as necessary, for the persons beneficially interested in the land under this section.

(3) Where co-owners of an estate or interest in any land not being itself partnership property are partners as to profits made by the use of that land or estate, and purchase other land or estate out of the profits to be used in like manner, the land or estate so purchased belongs to them, in the absence of an agreement to the contrary, not as partners, but as co-owners for the same respective estates and interests as are held by them in the land or estate first mentioned at the date of the purchase.

24. Property bought with partnership money - Unless the contrary intention appears, property bought with money belonging to the firm is deemed to have been bought on account of the firm.

47. Distribution of assets on final settlement of accounts -

(b) The assets of the firm, including the sums (if any) contributed by the partners to make up losses or deficiencies of capital, shall be applied in the following manner and order:

(i) In paying the debts and liabilities of the firm to persons who are not partners therein:

(ii) In paying to each partner rateably what is due from the firm to him for advances as distinguished from capital:

(iii) In paying to each partner rateably what is due from the firm to him in respect of capital:

(iv) The ultimate residue, if any, shall be divided among the partners in the proportion in which profits are divisible.

The disputed classification of the shares: the High Court judgment

Applying s27 of the Partnership Act, Tipping J held that the presumption of equality of sharing in the capital of the business as well as the profits had not been displaced. Mrs Brenssell did not intend to introduce her separate property as capital on a basis which would have effectively made a gift of half of it to her husband, but Mr Brenssell had never addressed his mind to the point and that was fatal to an implied agreement.

Next, applying Maw v Maw [1981] 1 NZLR 25, the Judge held that for matrimonial property purposes the beneficial interest of a partner in partnership property is in reality that partner's right to receive his or her entitlement upon a notional or actual dissolution. He went on to hold that at the date of hearing the partnership had long since been dissolved and the assets of the parties, viz a viz the partnership, were their respective rights to have the partnership wound up and the assets distributed in accordance with s47; that the individual beneficial interests did not represent property owned jointly or in common within the meaning of s8(c) of the

Matrimonial Property Act but fell within s8(e) and so subject to the relevant provisions of ss9 and 10; that while it was a reasonable inference that when Mrs Brenssell introduced a cash sum of $125,587.33 to the partnership on

26 September 1989, it eliminated a short term debit for the purchase of sheep and cattle, it would be both unreasonable and impracticable to regard the original separate property as still being separate property on dissolution in view of its intermingling with what was undoubtedly matrimonial property; that all the moneys due to Mrs Brenssell upon the dissolution of the partnership were matrimonial property and she was not entitled to deduct the sum of $79,876.00 from her share as her separate property. The classification of that sum is no longer in dispute.

Turning to the classification of the shares purchased from Mrs Brenssell's brother, Tipping J held that in terms of s24 of the Partnership Act a contrary intention, that an intention that the property being acquired was not being bought on account of the partnership, must have been present. The contract for the acquisition of the shares was between Mrs Brenssell personally and her brother. It would be quite unrealistic to take the view that she was contracting on behalf of the partnership. The shares were not and never were partnership property. While the $50,000 withdrawn by Mrs Brenssell from the partnership account was derived from the sale of meat and wool, a revenue matter, the partnership had not generated enough net profit to justify a $50,000 income pay out to Mrs Brenssell. The money was withdrawn for a capital purpose and the withdrawal should be regarded as a withdrawal of capital by Mrs Brenssell. The Judge concluded that while there had been intermingling he did not regard it as either unreasonable or impracticable to regard the $50,000 as still being Mrs Brenssell's separate property:

The money is directly linked with a transaction which took place only a month or so after the commencement of the partnership. As I said when discussing this topic earlier, it is very much a matter of fact and degree and what is reasonable and practicable in relation to the context of the point as a whole. Because of the way in which the

bank accounts were operated there undoubtedly was intermingling. It is not as if the sum of $50,000 contributed as capital was identifiable throughout as a separate fund. Justice, however, requires that the court recognise the substance of what was happening. A retrospective unravelling of the bank accounts to the extent of continuing to recognise the sum of $50,000 as Mrs Brenssell's separate property is in the circumstances of this issue both reasonable and practicable.

The finding that the B shares were not matrimonial property led inevitably to the conclusion that the A shares in JOD acquired by Mrs Brenssell under the will, were her separate property. Tipping J went on to hold that even if the B shares were matrimonial property the A shares would have been separate property. As between Mrs Brenssell and her father's estate the transfer of the A shares was always going to be gratuitous. In accord with both the letter and the spirit of s10(1)(a) Mrs Brenssell acquired the A shares in a manner and in circumstances which made them her separate property.

The disputed classification of the shares: rival arguments as to the B shares and DFL shares

Mr Andersen for the appellant husband submitted that a contrary intention within the meaning of s24 of the Partnership Act had not been established; that the purchased shares were owned by the farming partnership and should properly be classified as matrimonial property pursuant to s8(c) and so not subject to s10(1); that the $50,000 withdrawn from the partnership account was matrimonial property - the parties had not agreed to other than equal sharing of capital or to any withdrawal of capital; and that it was unreasonable and impracticable to regard the $50,000 as separate property - it was part of an arrangement to pay for the shares in JOD (and repay debt of the company) when the loan to the company was effectively to both partners since they guaranteed the mortgage. The $50,000 came from the partnership account and all interest was paid by the partnership.

Mr Alcock for the respondent submitted that s24 of the Partnership Act had no application and for two reasons. First, he said, the shares were not bought with money belonging to the firm. Second, if they were, the intention that they not be bought on account of the firm "appears" from the material before the court. They were purchased in Mrs Brenssell's name out of separate property and borrowings and were separate property in terms of s9(2). Further, even if viewed as matrimonial property within s8(e), the application of s10(1)(a) justified concluding that it was not unreasonable or impracticable to regard the $50,000 as her separate property.

The disputed classification of the shares: the facts

When considering the meaning and application of the provisions of the statutes it is important to have in mind the material facts in evidence.

The partnership was formed in September 1989. Mrs Brenssell had owned

5,000 B shares in JOD as her separate property since 1972. In 1986 she had received

$111,000 on realisation of some other separate property. In 1987 under her father's will she had inherited half the shareholding in DFL and a half share in the residual estate. If she acquired the interest of her brother in the B Shares in JOD she was entitled to the controlling A shares. She was in a position to obtain full ownership for herself of the two companies and thereby secure control of the farming assets of the companies. She had the financial means to do so.

The farming partnership was set up to farm the properties. It purchased initial stock, sheep and cattle, from JOD and the estate. It did not purchase any land from either company. There was no need to do so. Mr Brenssell had no means to do so. As it was he could contribute only $8,300 of the initial $188,000 capital contributions of the partners for a conventional farming partnership. His only work experience had

been with stock. He did not have any grasp or understanding of business affairs. He left those matters to Mrs Brenssell. But he must have understood that she had kept the property she had inherited or received from her family over the years as her separate property and that the death and will of her father provided her the opportunity of obtaining complete ownership of the two properties given that she already owned half the B shares in JOD.

In 1989 the remaining half of the B shares in JOD and the shares in DFL were purchased by Mrs Brenssell and in her own name. Mr Brenssell took no part. In the case of each company the agreement was dated 1 November 1989. It was between Mrs Brenssell as purchaser and her brother as vendor. The sales were at valuation which was not completed until a year later. But the brother as vendor executed the share transfer forms to Mrs Brenssell on 30 October 1989. Clearly, on the face of the documentation, Mrs Brenssell acquired the shareholding as her own property. Her evidence is also clear that that was her intention. Mr Brenssell's belief, as expressed in his evidence, that they were buying the shares on a fifty:fifty basis because, he said, they were husband and wife, did not arise until much later. At one point he said it was after he had spoken to lawyers after he had received the notice of dissolution of partnership in May 1992. At another he said it was when he was asked to sign the mortgage (October 1990).

We turn to the money flow. On 26 September 1989 Mrs Brenssell paid into the bank account, "M M and E M Brenssell - Farm Account", $125,587.33 from her separate property. A few days earlier on 22 September 1989 the account had been debited with $103, 712 for sheep and cattle purchased from JOD and $21,000 drawings by Mrs Brenssell. On 17 January 1990, $40,700.15 was paid into the "Premium Call Account", being proceeds of sales of lambs, and on 7 February 1990,

$28,866.28 from proceeds of sales of wool was paid into the same account. On

31 October 1990, $50,000 was transferred from that interest bearing account to the

farm account and paid out the same day to fund the settlement of the purchase of

Mrs Brenssell's brother's shares in the two companies.

The mortgage from JOD to the solicitor's nominee company was subsequently replaced without any involvement of Mr Brenssell. Tipping J took the view that the giving of the guarantee, which was never called on, did not affect the character of the funds used for the purchase or alter the proposition that the borrowed moneys followed the classification of the cash contribution. He saw the status of the cash sum of $50,000 as the key point for consideration. We agree.

The disputed classification of the shares: analysis

Against that background we turn to consider the application of the

Matrimonial Property Act having regard to the Partnership Act provisions.

The first question is whether the $50,000 withdrawn from the bank account was matrimonial property within s8(c). Mr Andersen submitted that as property acquired "on account ... of the firm or for the purposes and in the course of the partnership business" the credit in the bank account was to be "held and applied by the partners exclusively for the purposes of the partnership ... " (Partnership Act, s23(1)) and was "property owned jointly or in common in equal shares by the husband and wife" for the purposes of s8(c) of the Matrimonial Property Act. We cannot agree. In terms of s2 of the Matrimonial Property Act "owner" in s8(c) means the person who by virtue of any enactment or rule of common law or equity is the beneficial owner of the property. Partners are beneficial co-owners of all partnership property. Their rights inter se are regulated by their agreement and by the law of partnership. A partner's share in the partnership is not a title to specific property but a right to his or her proportion of the surplus after realisation of assets and the

payment of debts and liabilities (Maw v Maw [1981] 1 NZLR 25). A partner has an interest in every asset of the partnership and in Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd [1974] HCA 22; (1974) 131 CLR 321 at 327 the High Court of Australia noted that that interest had been universally described as a beneficial interest "notwithstanding its peculiar character". In its terms s23(1) requires partnership property to be held and applied by the partners "exclusively for the purposes of the partnership". And in Re Fuller's Contract [1933] Ch 652, 656

Luxmoore J emphasised that " ... as between the partners, the partnership property must be dealt with in a particular way". The special provisions of s23(2) and (3) relating to estates or interests in land also reflect that special character relating to other property. In our view that special position under the Partnership Act does not fit within the description of "property owned jointly or in common in equal shares" in s8(c). Section 23 is dealing with property of a partnership. Section 8(c) is directed to the conventional acquisition and incidents of ownership of property by spouses jointly or in common in equal shares. As it was put in Swirksy v Horwich,

47 NE 2d 452, 453, "While partnership property has many characteristics of an estate in common and of joint tenancy, yet the interest of the partners in the firm property is neither that of joint tenants nor of tenants in common. Each is possessed of a joint interest in the whole but does not own any separate part of partnership property."

The next question concerns the application of s24. That section applies only where "property [is] bought with money belonging to the firm". Tipping J found as a fact that Mrs Brenssell applied funds which she had properly withdrawn as a capital matter from her current account in payment for the shares. In our view he was justified in reaching that conclusion. As has been emphasised in numerous cases and most recently in this court in Gough v Gough (1996) 14 FRNZ 660 at 668-670, questions of this kind arising in a matrimonial property context do not turn on the niceties of property law. They do not turn on the technicalities of tracing. A technical analysis of the relationship of banker and customer is inappropriate. A

broader approach consonant with the purposes of the Matrimonial Property Act and the relationships of the parties to their affairs is required in deciding whether property has been bought with money belonging to the firm.

Mrs Brenssell did not seek Mr Brenssell's express agreement to drawing

$50,000 from the bank account. But he was content for her to make decisions on all financial matters. Essentially, it was her money that funded the partnership. The bank account had been debited for the stock purchases and cleared within four days by her payment from her own property. A few weeks later proceeds of sale of that produce was withdrawn and deposited at interest until required to complete the purchase of the brother's shares once the valuation was received. The funds were available to justify payment of $50,000 in reduction of the very substantial credit in her current account with the partnership. In withdrawing the 50,000 and utilising it in payment for the shares Mrs Brenssell must be regarded as having acted properly in terms of the understanding the parties had had over the years under which she exercised her own judgment in financial matters. In the present case she is to be regarded as having legitimately drawn on her own account in the partnership. The partnerships accounts as finally settled debited her current account with that payment and with interest on the mortgage indebtedness.

On this analysis the second question under s24, whether a contrary intention is established, does not arise for consideration. Neither does the operation of s10. The

$50,000 withdrawn is separate property and, applying s9(2), the shares purchased with that money are separate property, being excluded from matrimonial property under s8(e) by the opening words of that paragraph, "Subject to subsection (2) ... of section 9".

The second and third issues

It is common ground that if the B shares in JOD are classified as separate property the A shares and Mrs Brenssell's current account credit in JOD must also be classified as separate property.

The second and third issues are determined accordingly. In the result it is unnecessary to go into the question whether, even if the B shares were matrimonial property, the A shares were separate property being acquired by Mrs Brenssell by succession under the will of Mr Douglass (s 10(1)).

The fourth issue: unequal sharing of matrimonial property

In terms of s15 each spouse shall share equally in the matrimonial property (other than the matrimonial home or its equivalent and family chattels) "unless his or her contribution to the marriage partnership has been clearly greater than that of the other spouse". That overall contribution is to be evaluated in terms of the criteria referred to in s18(1); and s18(2) effectively enjoins the court not to be mesmerised by the fact that one spouse may have made a greater financial contribution to property during the marriage. The statutory scheme recognises that in the general run each spouse contributes in different but equally important ways to the common enterprise which constitutes the marriage partnership and the legislation presumes that, in the ordinary circumstances of marriage, the respective contributions of the spouses, whatever form they have taken, will be in balance at the end of the day. It is also well settled that a contribution to the marriage partnership by one spouse of separate property is properly treated as an additional contribution by that spouse for the reason that the separate property did not itself result from the operations of the marriage partnership. The casting of the matrimonial net widely under s8 is thus balanced by the recognition given to contributions of that kind in determining whether or not

unequal sharing is called for under s15 and, if so, the extent of the inequality (Sloss v

Sloss [1989] 3 NZLR 31).

On his overall assessment of the respective contributions of this husband and this wife to their marriage partnership Tipping J concluded that the wife's contribution had been clearly greater than that of the husband and determined that their respective shares in the matrimonial property reflecting their respective contributions to the marriage partnership should be two-thirds to the wife and one-third to the husband. He set out his reasoning in this way:

Section 18 describes what matters can amount to contributions to the marriage partnership. There are eight paragraphs of which the first four, (a), (b), (c) and (d), are those which have the principal relevance in the present case. Also to be noted is s18(2) which says that there is to be no presumption that a money contribution is of greater value than a contribution of a non-monetary nature. This provision reminds the Court to be wary of placing too much emphasis on what Sir Owen Woodhouse once called "the hypnotic influence of money". It is a matter of weighing the contributions of all kinds on both sides and then determining whether one spouse has made a clearly greater contribution than the other and, if so, what disparity is justified by the differing weight of the contributions.

Paragraph (a) of s18(1) is concerned with the care of children and other relatives or dependents. In this case I am satisfied that Mrs Brenssell's contribution under this head substantially outweighs that of Mr Brenssell. Indeed there was really no dispute about that. The same applies in relation to paragraph (b) which deals with the management of the household and the performance of household duties. Paragraph (c) is concerned with the provision of money, including the earning of income for the purposes of the marriage partnership. Both parties made contributions under this head. Mr Brenssell contributed his earnings. Mrs Brenssell also contributed earnings but, significantly, she contributed separate property both of an income and of a capital kind to general family purposes; but if this head had stood alone it would not have been a case for any disparity.

Paragraph (d) deals with the acquisition or creation of matrimonial property including the payment of money for those purposes. The evidence satisfies me that Mr Brenssell acquired or created very little matrimonial property. On the other hand Mrs Brenssell created

substantial matrimonial property by her introduction of almost

$180,000 of separate property to the farming partnership. Of course

$50,000 of this amount went out to buy the shares, but it can still validly be said that Mrs Brenssell's input was largely causative of the fact that some $335,000.00 is available for sharing as matrimonial property.

From this review I come without hesitation to the view that Mrs Brenssell did make overall a clearly greater contribution to the marriage partnership than her husband. The degree of disparity will obviously not be as great as if the shares had been held to be matrimonial property and thus an additional contribution by Mrs Brenssell under paragraph (d). In my judgment the facts of this case lead to the conclusion that Mrs Brenssell's contribution was twice that of Mr Brenssell. I consider that any greater disparity than that would be going too far but equally I consider that a disparity of one and a half times would not adequately recognise the substantially greater weight of Mrs Brenssell's contribution overall. It is not just the financial input which must be weighed. There are also her markedly greater contributions in relation to paragraphs (a) and (b).

We are satisfied that on the material in the case, including the oral as well as the affidavit evidence of both the husband and wife, Tipping J was entitled to make the findings he did as to Mrs B's "markedly greater contributions in regard to paras (a) and (b)"; as to their contributions of earnings and, significantly, her separate property contributions both of an income and a capital kind to general family purposes (para (c)); and as to her funding of the farming partnership having resulted in some

$335,000 being available for sharing as matrimonial property (para (d)). None of that was seriously disputed.

The more difficult question is translating that established imbalance of contributions to an apportionment reflecting the overall assessment of the contribution of each to the marriage partnership. Two factors here add to that difficulty. First, the length of the marriage, in this case 25 years, is important because the statutory concern is with the contributions to the marriage partnership over the whole span of their lives together and spouses should be expected to contribute in different ways at different times during a long marriage. Second, the

provision of separate property and the creation of matrimonial property and payment of separate property money for that purpose are properly treated as additional contributions for the reason that the separate property did not itself result from the operations of the marriage partnership. Next, when the case for unequal sharing has been established, the same considerations that give rise to the presumption of equal sharing counsel caution in reaching a conclusion that the disparity in contributions has been so great as to justify a striking differentiation between the spouses. Thus, an apportionment, as here, of two thirds:one third involves a conclusion after evaluating in their totality all considerations, intangible as well as tangible, required to be taken into account, that one spouse's contribution to the marriage partnership overall was twice that of the other.

With those considerations in mind, we have reviewed the matters which weighed with Tipping J and his ultimate conclusion, recognising too that as trial Judge he had the opportunity of assessing Mr and Mrs Brenssell when they gave evidence. In the result, and in what is essentially a matter for judgment, we are not persuade that he erred in his evaluation and in fixing the share in that matrimonial property at one-third to Mr Brenssell and two-thirds to Mrs Brenssell.

Matrimonial home allowance

Section 11(3) provides that where there is no matrimonial home "the Court shall award each spouse an equal share in such part of the matrimonial property as it thinks just in order to compensate for the absence of an interest in the matrimonial home".

The matrimonial home was sold in May 1990 for $29,445. Mrs Brenssell was entitled under the order made by Tipping J to receive half the amount of $10,642

which she was still holding from the sale proceeds at the date of separation. The Judge went on to direct under s11(3) that the parties share equally in the first $20,000 of matrimonial property. By that means Mr Brenssell would receive in total a full one-half share of the price of the matrimonial home. The Judge rejected a submission that given the material resources of the parties at the date of separation the matrimonial home allowance should be based on a notional matrimonial home having a value in excess of $200,000. There was, he said, no valuation evidence to support any such approach and he would have regarded it as unjustified in any event.

Mr Andersen submitted that the allowance as fixed by Tipping J was unreasonably low and that $100,000 was a reasonable assessment of the matrimonial home allowance. Fixing the allowance at the amount received from the sale of the previous matrimonial home did not take account of the significant improvement in the parties' financial situation since the sale and the significant increase in the value of the assets of the farming partnership. The matrimonial property was in excess of

$330,000 and as sole shareholder in JOD, which owned Tumai, Mrs Brenssell effectively owned the actual matrimonial home which the parties had occupied from April 1988 until they separated in May 1991.

Section 11(3) requires the court to determine as best it can the kind and value of matrimonial home that it would expect the parties concerned to have had had they had one. However, there was no evidence as to comparable house values relevant to the position of the parties. There was no evidence of the market value of the Tumai homestead. The parties had lived in their matrimonial home in Waikouaiti from 1969 to 1976 and again from 1986 when they returned to Waikouaiti, until they shifted to Tumai. Further, the proceeds of sale, except for $10,642 on hand at the date of separation, went into the farming partnership. No doubt those proceeds contributed to the increase in the value of the assets of the farming partnership reflected in the matrimonial property for sharing between the parties.

In all the circumstances, and on the material before the court, the Judge was entitled to conclude that the sale price of the former matrimonial home was a fair indicator of appropriate compensation for the absence of a matrimonial home.

Result

For these reasons the appeal is dismissed with costs to the respondent of

$5,000 together with all reasonable disbursements including travel and any accommodation expenses of counsel as fixed, if necessary, by the Registrar.

Solicitors

Calvert & Co, Dunedin, for appellant

Gallaway Haggitt Sinclair & Partners, Dunedin, for respondent