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I am conducting a survey on use and experience of “prenuptual” or relationship property agreements. I would be grateful if you could complete the survey and also if you would pass on the link to other people or groups so that I can get a meaningful sample. I welcome any comments about the survey itself, the questions etc, keeping in mind that the free version of the survey only allows 10 questions. You can access the survey here. Thanks all!
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A comment more on trusts than perhaps prenups, but lately the Family Caught, High Court and Court of Appeal have been busy stripping away the protection Family Trusts give to the protection of personal property rights as a result of the relatively recent ‘bundle of rights’ doctrine established by a number of common law precedents. This in essence says one party’s legal rights in terms of administration and management of a family trust can become relationship property.
We would recommend anyone interested in prenups and trusts read the frequent articles by trust specialist barrister Anthony Grant writing on this subject. He paints a very gloomy picture of the future of family trusts and even prenups. His tragically sad advice basically is that if you want to ensure personal assets are totally protected do not enter into any sort of relationship even with a prenup. The courts are prepared to examine and strip away anything. Having a family trust or a prenup does not necessarily protect personal property rights under the RPA.
Gerhard Van B
Comment by GerryMen — Sun 5th December 2010 @ 11:47 am
There are good reasons in equity why hiding assets behind trusts should not allow unethical people to avoid their legal duties.
To my knowledge, the largest users of trusts are legal workers themselves. So why would they want this protection to be stripped away? It is worth thinking this through carefully!
There are social problems designed into the Relationship Property Act, it incentivises legal action, even when the claimant has no valid economic claim. This is a driver for worthless, valueless, socially destructive litigation. Without this, the caughts would wither away to nothing. Legal-Worker’s-Aid is in place to help fund the least socially desirable litigation and to force taxpayers to fund legal workers trying to make it off legal-worker’s-aid, onto privately funded “workless-work”.
Prenuptial agreements are only as good as the degree of trust that you could place in any familycaught “judge” to follow through and enforce it.
You will need to make up your own mind on this, if you can obtain sufficient accurate honest information about what goes on in “our” caughts! I suggest that to obtain such information, you would need to bug every caught in NZ…. for a few years. Published “judgements” are not an accurate reflection of what goes on in the caughts. They are “judgements” selected by the “judges” and passed on to the legal publishers, in the hope that they might be mentioned in despatches. It is the “judgements” withheld, that you also need to see. The result is that the published “judgements” are just marketing materials, they are not statistically valid at all, in the way that an informed consumer would want to base decisions on. There is a need to apply the fair Trading Act to this marketing material.
Due to the erratic unpredictability of “judges” judgements, the only confidence you can have is that you and your wife will pay “legal fees” and not receive them. Outside that certainty, everything is just an uninformed gamble. The odds are more honest at TAB, ACC and IRD, than in any NZ caught.
I know one husband who did get a “judgemement” in accordance with NZ law, but only after first “losing” in familycaught, appealing to “highcaught”, referral back to familycaught with clarifications on the meaning of Relationship Property Act, 3rd rehearing in familycaught and viola! As “professionals”, they had achieved for $350,000 what an honest monkey could have achieved to $1,500. Interestingly, the woman lost almost half as much as the husband, which does go to show they are not sex prejudiced, they will steal from anyone who waves money at them. But be careful, many stories are much worse than that….. This battle was not in the child’s interests at all, either financially of socially. I cannot relate the legal worker’s behaviour, to their legal duties or legislation at all!!??
It is to distract the public’s attention away from this un-managed mangle, that John Key wants to have a public spectacle of a Royal Commission on Mining Coal and Sympathy.
By weighing up “judges” contribution to allowing valueless litigation, enables us to evaluate “judges” total contribution to society. You need a calculator that can handle negative numbers.
Cheers, MurrayBacon.
Comment by MurrayBacon — Sun 5th December 2010 @ 9:55 pm
Good point Murray. There is a lot worth reading in the unreported cases that judges don’t refer to the NZLR. Fortunately the unreported cases can be found in LexisNexis or Brookers if you have access and the time and the paitience!
GvB
Comment by GerryMen — Sun 5th December 2010 @ 10:23 pm
The law has a bet each way on everything so it really is a lottery of uncertainty and beliefs that there will be big payouts. In the end no one wins. Even if you win you still lose, you just don’t lose as much as the other side. The worst thing you can ever do is get someone to ‘help’ you when they have a financial interest in really not helping you at all. Very serious harm is being done to children from broken marriages that the controlled media will not tell you about, or how divorce steals from children a whole way of life they will never know. People look for answers to the family problem in court but it goes way past that.
Comment by Larry — Mon 6th December 2010 @ 8:30 am
Oh, this will be interesting to learn from. Good on you Hans.
Comment by julie — Mon 6th December 2010 @ 11:14 am
Dear GerryMen, you seem to misunderstand me. When “judges” fail to forward some of their “judgements” to the legal publishers, then the legal publishers remain blissfully unaware of these hidden judgements and so do we!! (Unless it was our own judgement, or we knew the parties, or the highcaught judge published an appeal based on that “judgement”.)
If you were a “judge” and you knew that your “judgement” breached legislation, or rules, or previous superior caught “judgements”, then it would be tempting to fail to forward the “judgement” to the legal publishers and keep your malpractice as quiet as possible.
This is the hazard involved in having secret caughts, is it worth the risks?
Lets take the example that I quoted in #2 above. When the familycaught “judge” made a “judgement” clearly in breach of the Relationship Property Act, do you think that she forwarded that “judgement” to the legal publishers (with her name on it!!!!)?
I don’t know whether she did or not in that case, but I think that this would likely be the case, given the illegality.
Within my own personal experience, my two first familycaught “judgements” were, in my opinion, clearly in breach of the Guardianship Act 1968. I queried the legal publishers as to whether they had copies of these “judgements” and they both confirmed that they had never been forwarded copies, by “judge” dgreen=dclarkson and “judge” mdrobinson.
Another example where the familycaught “judge” failed to forward her/his “judgement” to the legal publishers, but judge priestley did publish his highcaught appeal judgement, on the same case!!!!!!
lets-prosecute-child-abductors
Search down in the page, for the word Priestley and you will find it. Interestingly, although judge priestley published his own judgement, he was careful to not expose the true identity of the familycaught “judge”. Essentially then, he left himself open to an accusation of complicity as an accessory after the fact. In reading the judgement, you can see the improprieties laid out.
It all goes to show that it is wise to take them no more seriously, than they take themselves.
If they refuse to enforce their own “judgements” when they are breached, then neither should we take their “judgements SERIOUSLY, we would only be harming ourselves and our families!
Have fun, Christmas is coming soon – you can take that seriously. Misplacing trust can end up being a suicide trigger.
Cheers, MurrayBacon axe-murderer.
Comment by MurrayBacon — Mon 6th December 2010 @ 8:55 pm
We hear you Murray, we hear you! Of course you are right, the Family Court is selective in what cases it refers for publication, but the cases have to listed somewhere if there was a formal hearing. Not all cases are published in legal journals such as the NZLR or Family Law Review etc but they should still exist in the legal data bases as ‘unreported’ cases and can be quoted as precedents in other cases. Lawyers often rely on such unreported cases and you may have seen the term ‘unreported cases’ referred to in legal arguments. This is what the lawyer is referring to – a case like yours. It is a confusing term I agree because it relates only to the case not being published in a legal journal but it is still nevertheless ‘reported’ in a sense that it is filed in the legal data bases for any lawyer or legal worker to search.
If you know the year of the hearing and the file number and have access to Lexis Nexis or some other vastly expensive legal data base you will be able to pull up these cases and quote them. Law School libraries can give you cheaper access. A poor consolation I know as these cases only come to light by the efforts of a keen a legal searcher of the data bases.
Happy Xmas Jeremy H 🙂
Comment by GerryMen — Tue 7th December 2010 @ 9:43 am
Dear GerryMen, you seem to be turning a deaf ear to my comment, the details of what I said are important, if you wish to have a realistic understanding of the basis of law in NZ.
If you don’t wish to take my word for this, then I suggest that you check it out for yourself, it is not difficult!
Think through yourself and your friends and the “judgements” that they have experienced?
Which of these is the grossest abuse of protection of children, of the legislation, of precedents and of familycaught rules?
Discuss your enquiry with your friend, who has that “judgement”, (or with yourself, if it is your own “judgement”!).
Then, ring up both legal publishers (it is really better done by letter, but if you are economical with your time and don’t require good quality evidence, then a telephone call may suffice). I recommend letter, as this will leave you with better quality evidence, at the end of your enquiry.
Ask them if they have that “judgement”, giving them the file number and the date and the location of the caught, if they ask.
Maybe they do have it and maybe they don’t?
If NZ was a common law country, then all judgements (except those formally ordered to be kept secret), should be accessible to the legal publishers, for them to chose which they will publish.
If some “judgements” are unavailable to the legal publishers and ultimately to all citizens, then NZ is not really a common law country.
Common law means that all judgements are accessible to all citizens and thus people can check whether they have been treated similarly to other people in reasonably similar situations.
Anyway, please feel free to enjoy your skepticism, if this is what you choose?
I don’t wish to break illusions, that you might enjoy….. or need to keep your life functioning.
Anyway, I suggest that believing in Santa Claus is safer for families, than “believing” in familycaught, but it is important that you work it out for yourself… If you value the welfare of your family, then you do need to know the truth about the values that the familycaught “works” on.
evidence-is-easily-swept-away-by-sympathy
judge mahony speaking to Parliament’s Social Services Committee about forwarding judgements
Best regards, MurrayBacon axe-murderer.
Comment by MurrayBacon — Tue 7th December 2010 @ 7:07 pm