Artwork…when is it mine and when is it ours? Relationship property, separate property and the concepts of “taonga” & “heirlooms”?

The status of artworks on display in the family home has been considered in a recent Family Court decision.

The Court considered whether the artworks were separate property or family chattels.  The classification is important because family chattels are relationship property and as such will typically be divided equally between the separating parties, whereas if the artworks are “taonga” they will attract separate property status, and remain separate property.

The majority of the artworks were classified relationship property as they fell within the definition of family chattels.  “Family chattels” is defined as including, “…articles of household or family use or amenity or of household ornament…”.  The artworks which were not on display in the home remained separate property.

The argument that the artworks were taonga failed. In reaching its decision the Court considered when an article might remain separate property, relying on the concept of “taonga”.

The definition of taonga is not limited to Maori property.  It can be applied provided the following are established:

1. The item must have elements of whakapapa (genealogical identity), some significance or mana (prestige), and tapu (sacredness).
2. The item must be presented either by a group or an individual (on behalf of a kin/tribal group) to another, in a marae-like setting.

Art is often sentimental in nature.  When you are entering into a new relationship you may wish to protect artworks and other sentimental items of property.  While the Property (Relationships) Act protects “taonga” and “heirlooms” as separate property, because the Act does not define “taonga” and “heirloom”, relying on these concepts to protect your sentimental items can be uncertain.

In order to protect what is important to you it is sensible to consider entering into a contracting out agreement.  In a contracting out agreement you can clearly list the items which are important to you, and that are to remain your separate property so that disputes many years later can be avoided.

If you are interested in protecting your property give us a call on (04) 473 6850.