When couples separate the division of their assets is generally decided under the Property (Relationships) Act. However, under the Act, Māori land is excluded from normal rules of division. This means that the land, and potentially the house, may not become relationship property even when there is a qualifying relationship (marriage, civil union, or de facto relationship).

The exclusion of Māori Freehold land under the law relates to Tikanga Māori customary practice of passing land down through the whānau or hapū.

The issue becomes more complicated when homes are involved. The way courts look at whether a house is part of Māori Freehold land is to figure out how attached the house is to the land, and therefore whether the house was intended to be permanently attached to the land.

In one case the court decided that a house built on timber piles, and rested upon its own weight, was not affixed to the land. This meant the house was relationship property and would be divided under normal law.

However, where the house is attached to the land, this usually means that the house does not become relationship property. In this situation the person that has no interest in the land would also have no interest in the house.

Courts have addressed this in two ways.

Firstly, constructive trusts have been used to provide non-owners an interest where they have made contributions or increased the value of the property. Alternatively, courts may divide remaining relationship property unequally to compensate the party without an interest in the house or land.

When parties separate, and one person has an interest in Māori Freehold land, there may be different entitlements to relationship property than normal.

If you are involved in a separation of relationship property where one person has an interest in Māori Freehold land, it is wise to speak with a professional experienced in the area.

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