Koops v Den Blanken [1999] NZCA 148; (1999) 18 FRNZ 343 (17 August 1999)

Last Updated: 1 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA262/98

	BETWEEN	RENEE JULES VICTOR KOOPS
		Appellant

	AND	ELEANOR ROSE ALICE ANTOINETTE DEN BLANKEN
		Respondent

Hearing:	17 August 1999
Coram:	Richardson P Henry J Blanchard J
Appearances:	C F Eckard for Appellant J W Watson for Respondent
Judgment:	17 August 1999

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] This appeal pursuant to leave granted under s67 of the Judicature Act 1908 concerns the application of a foreign prenuptial agreement to land in New Zealand in the joint names of the parties at the time they separated.
[2] The immediately material provision of the Matrimonial Property Act 1976 is s7 which provides as follows:

(1) This Act shall apply to--

(a) Immovables which are situated in New Zealand; and

(b) Movables which are situated in New Zealand or elsewhere if, at the date of an application made pursuant to this Act, or of any agreement between the spouses relating to the division of their property, either the husband or the wife is domiciled in New Zealand.

(2) This Act shall also apply in any case where the husband and the wife agree in writing that it shall apply.

(3) Subject to subsection (2) of this section, this Act shall not apply to any matrimonial property if the parties to the marriage have agreed, before or upon their marriage to each other, that the matrimonial property law of some country other than New Zealand shall apply to that property, and the agreement is in writing or is otherwise valid according to the law of that country, unless the Court determines that the application of the law of the other country by virtue of any such agreement would be contrary to justice or public policy.

(4) Notwithstanding anything in subsection (1) of this section, where any order under this Act is sought against any person who is neither domiciled nor resident in New Zealand, the Court may decline to make an order in respect of any movable property that is situated outside New Zealand.

[3] The appellant and the respondent, both Dutch nationals and at the time domiciled and resident in The Netherlands, were married there on 24 August 1989. She had limited financial resources. He had more substantial resources. On 9 August 1989 they entered a prenuptial agreement in the Dutch language. The only translation in English which was before the Family Court by agreement records that both parties had expressed their intention to have the financial consequences of their intended marriage laid down in a matrimonial property agreement and materially states:

1. Under the heading "General Exclusions", that both parties will enter matrimony to the exclusion of any community of property;
2. Under the heading "Goods and Chattels" "Section 2" that

"1. Goods to which the bearer is entitled and items which are not registered, and which belong to the business or professional chattels of one spouse, are the property of that spouse, regardless of who brought these chattels in, but with Section 3 remaining in full force;" and

"4. In those cases where there is a disagreement between the spouses as to the extent of their entitlement to an item which has been registered in both names, without mention as to the extent of their share in it, both spouses will be considered to be entitled to an equal share of said item, unless evidence to the contrary is produced."

3. Under the heading "Summing up", that "The parties also declared that: those goods and chattels which are not goods to which the bearer is entitled and which are not registered goods (as well as any other goods) have been described in the list of goods contributed to the marriage which has been signed by me, the notary public, and by both parties.

The Netherlands law will apply to legislation on marriage portions which may apply between the parties."

[4] Two years later, in August 1991, the parties migrated to New Zealand. In December 1991 they bought a 24 hectare farmlet in their joint names and two years later they bought a further two hectares of land, again in their joint names, with a mortgage back to the vendors for the amount of the purchase price less the deposit under which, of course, both husband and wife were personally liable. The declarations under the Land Settlement Promotion Land Acquisition Act 1952 stated that they both intended farming the property exclusively for their own use and benefit and that (it seems contrary to the true facts) the parties jointly had significant foreign investments which were being transferred to New Zealand for the purchase. It is common ground that the parties were by then and are now domiciled in New Zealand.
[5] There were two children of the marriage. The parties separated on 28 April 1995. The property was subsequently sold for $360,000 plus GST.
[6] The wife applied to the Family Court for orders under the Matrimonial Property Act, including orders declaring the New Zealand position relating to the prenuptial agreement, declaring the respective rights and interests of the parties in the farm property, and declaring that it would be unjust to give effect to the agreement. The associated application sought avoidance of the agreement on various specified grounds, wrongly directed to s21 of the Act, namely that the parties had not received independent legal advice before signing the agreement (s21(5)) and that it would be unjust and unfair to give effect to the agreement having regard to the provisions of the agreement, the circumstances at the time it was entered into, the time that had elapsed and the changed circumstances (s21(10)).
[7] Judge Ryan saw as the primary issue what was the effect of that agreement on the division of property acquired by the parties during the marriage. Referring to the expression "that property" in s7(3) as referring back to "any matrimonial property" in the subsection, he concluded that he had to be satisfied on the evidence that the prenuptial Dutch agreement applied to the specific assets in question which for present purposes was essentially the farm property owned jointly by the husband and the wife (s8). In that regard the Judge noted that he had no evidence from an appropriate expert in Dutch law on the point and was in a similar position to that faced by the court in Pool v Pool (CA 8/82, judgment 8 September 1983) where the court said at pp4-5:

An unsatisfactory feature of the case is that the true meaning and effect of the prenuptial agreement made in Holland is far from clear from the English translation, nor is there any evidence from an expert in Dutch law. Broadly speaking the agreement does appear to be intended to negate community of property under Dutch law; but whether it extends to immovables not situated in Holland is one point of doubt.

In the absence of evidence from an appropriate expert in the foreign law concerned, we are not prepared to hold that the agreement operates by way of settlement of the question that has arisen in relation to matrimonial property - namely, whether the wife is entitled to some interest in the farm or compensation in lieu thereof.

[8] The Judge noted that in the course of her evidence the wife had translated the heading of s2 in the agreement as meaning, in English, "goods and chattels"; that the husband had given no evidence as to his interpretation; and that he, the Judge, was not prepared to accept what he regarded as evidence from the Bar by way of submissions as to an alternative translation. He concluded that on the face of the agreement it failed to deal with real property or with assets outside Holland and there was no expert evidence on Dutch law to satisfy the two points. Further, the Judge accepted the alternative argument that in the absence of such evidence the court must apply New Zealand Law - as Somers J put it in Livingstone v Livingstone (1984) 4 MPC 129, 134, the proof of any variance lies on the party asserting it -

concluding in the absence of evidence as to the Dutch interpretation of the agreement, that the translation of the document gave no indication on its face that the agreement applied to assets outside of Holland, nor did it appear, on the face of it, to deal with any jointly owned and registered real estate. In the result he concluded that the agreement was vague and uncertain and had no effect.

[9] On the appeal to the High Court, and essentially for the reason that the proposed evidence had been available at trial, Paterson J declined an application by the husband seeking to adduce a further translation of the prenuptial agreement which would confine the meaning of s2 to "moveable goods and chattels". There was no application to introduce expert evidence as to the interpretation of the agreement under Dutch law.
[10] On the substantive issue Paterson J held that Judge Ryan was correct in determining that the prenuptial agreement had no application. The onus was on the husband to establish the application of the prenuptial agreement to realty in this country. The interpretation of the provision, "The Netherlands law will apply to legislation on marriage portions which may apply between the parties", and indeed the determination of whether the agreement was valid and, if so, whether it applied to realty in this country, required evidence from an expert in Dutch law. In the result Paterson J did not find it necessary to consider the alternative argument which Judge Ryan had also upheld.
[11] In granting the application for leave to appeal to this court Randerson J considered there was room for the view that the onus of proof issue may not be as important in matrimonial property cases as it is in the civil context, the role of the courts under the Matrimonial Property Act being to some degree an inquisitorial one to do justice between the parties rather than to consider one spouse's claim against the other in a strictly adversarial context (Fisher on Property (3rd ed) paras 18.24 and 18.27).
[12] In his argument before this court Mr Eckard for the appellant submitted that the Family Court and the High Court erred in concluding that there was an onus on the husband to establish that the prenuptial agreement applied to realty in New Zealand. The wife accepted that the agreement was entered into but sought to have it voided and accordingly in terms of s7(3) had to establish that it was not a valid agreement under Dutch law or that it would be contrary to justice and public policy to apply Dutch law. In short, Mr Eckard submitted, it was for the wife, not the husband, to adduce evidence of an expert on Dutch matrimonial property as to the interpretation of the agreement. He also sought leave to adduce evidence from a New Zealand lawyer trained in The Netherlands as an expert on Dutch law as to the scope and application of the agreement but his primary submission was that it was the wife who made the matrimonial property application and sought to have the agreement overturned and it was for the wife to adduce such evidence before the Family Court; and in that regard he accepted that long before the Family Court hearing the husband in an affidavit of 22 November 1996 said he had been advised that evidence might have to be put before the court by way of affidavits by expert witnesses as to the scope of Dutch law.
[13] We cannot agree. Section 7(1)(a) states as the general rule that the Act applies to immovables situated in New Zealand. That harmonises with the well known general conflicts rule that all questions concerning rights over immovables are governed by the lex situs (Walker v Walker [1983] NZLR 560). For s7(3) to prevail, the first requirement is that the parties "have agreed ... that the matrimonial property law of some country other than New Zealand shall apply to that property", that is to the land in question and the proceeds of its sale. As a matter of jurisdiction the Family Court was required to be satisfied that the farm property and proceeds of sale were matrimonial property. Mr Eckhard accepts that the wife did not admit for the purposes of the hearing in the Family Court that the property was excluded from being matrimonial property by Dutch law. As the Family Court properly recognised, to displace s7(1) the court had to be satisfied that the agreement indeed had that effect.
[14] It is a basic principle that those propounding an agreement must prove its terms and the husband was relying on the agreement as excluding the property from s7(1). But whether viewed as a matter of onus or as the proper conclusion on the evidence before the Family Court, the same answer necessarily follows. The existence of a prenuptial agreement was not in dispute. What had to be determined was whether it applied to real property subsequently purchased in New Zealand in the joint names of husband and wife. There is nothing on the face of the English translation of the document before the Family Court to lead to the conclusion as a matter of construction of documents under the law of New Zealand that the prenuptial agreement applies to immovables purchased outside Holland during the marriage in the joint names of the spouses. And there is no expert evidence as to the applicability of Dutch law.
[15] It is also far too late to adduce evidence of Dutch law as to the interpretation of the scope and application of the agreement in relation to the purchase of New Zealand realty by these parties in their joint names at a time when they were and are domiciled in New Zealand. The husband, who in the end was relying on the agreement to exclude the farm property from the New Zealand matrimonial property regime that would otherwise apply to it, knew well before the hearing in the Family Court that expert evidence might be needed and counsel and the court were well aware of Pool v Pool and other New Zealand authorities and no application was made to the High Court for admission of this evidence.
[16] In the result it is sought to be adduced at the second appeal level. However, we should also add that the detailed affidavit by Mr Reuvecamp does not cover and provide a simple resolution of all the legal and factual issues that would require consideration if that evidence were to be admitted.
[17] For the reasons given the application and the appeal are dismissed with costs to the respondent wife in the sum of $5,000 together with all reasonable disbursements, as fixed if necessary by the Registrar, including travel and any accommodation expenses of counsel.

Solicitors
Cor Eckard Law Office, Whangarei, for appellant
H Drummond, Whangarei, for respondent