In any relationship breakup, and these days this is not restricted to the legally married variety, the loss of treasured family heirlooms or taonga can be easily avoided if steps are taken by spouses/partners to have family heirlooms and/or taonga kept separate.

As a general rule, when a marriage, civil union or de facto relationship of three years or more comes to an end, each party is entitled to half of all “relationship property”. One of the categories of property, which is not considered “relationship property” and is instead considered the separate property of one or other of the parties to the relationship are taonga and heirlooms.

There have been many cases before our Courts dealing with the definition of “taonga” and “heirlooms”. Whether a party is successful in keeping a taonga or heirloom separate following the end of a relationship will depend on the facts of the particular case.

It is important therefore, that people who have items of particular significance, value or sentiment, come to an agreement with their partners as to what each party understands their taonga or heirlooms to be. They should also agree as to what should happen to those heirlooms or taonga if the relationship comes to an end.

Sometimes entering into an agreement of this nature is not easy. However, the earlier this issue is addressed in relationships, the easier it is likely to be.

An agreement of this type will not be binding unless it is in writing and each party to the agreement has had independent legal advice as to the consequences of singing it. The Agreement must also be signed by each party and their independent lawyers. This type of Agreement is called a “Contracting Out Agreement”.

A Contracting Out Agreement can be entered into at the beginning of or during a relationship.

Should you have assets such as heirlooms or taonga that you wish to protect, we suggest that you seek legal advice regarding the best protection for you.

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.