NZ Relationship Property Law
"The basis of this new relationship property law is 'the less the wife contributes, the bigger proportion of the assets she gets'." - Bruce Tichbon, Families Apart Require Equality.
A new provision in relationship property law allowing for compensatory payments to an
estranged partner has been applied several times in the Family Court since it became law in
February 2002. In one recent case, Judge Dale Clarkson awarded $50,000 to the wife as
compensation for a disparity in income and living standards found to be caused by the wife's
role in the marriage. The payment is "compensatory", so the entire amount was paid from the
husband's already divided share of the relationship property.
Dominion Post April 24th 2003.
Family Court Caseflow Management Practice Note
This amendment to the Practice Note has been issued to set out the procedures to be followed for applications under the Property (Relationships) Act 1976 [this should presumably be 2001 - JP]. Operative from 1st September 2002. By Judge P D Mahony.
Relationship break-ups: the assets
The Consumer website has a useful overview which explains how the law in relation to separation works, what you need to know, and where to get more help. (link) August 2002.
2001 Property Relationship Act
Summary of information prepared by the Family Law Section of the New Zealand Law Society here.
Property (Relationships) Amendment Act 2001
Stuart Birks' Wellington seminar / debate with Ruth Busch
on August 6th 2001 is on the web here: (link)
It has also been published in the November issue of the New Zealand Law Journal (pp.448-452) under the heading: 'Relationship Property: Stuart Birks, Massey University, subjects the Amendment Act to rational analysis.'
Matrimonial Property Amendment Bill 109-3
as reported from the Justice and Electoral Select Committee on 30th October 2000, available here: (link)
Men's Group Submissions
Stuart Birks' submission is on the web here: (link)
Submissions by FARE (Families Apart Require Equality) and Robert Murray are here
The Men's Centre North Shore submission to the Select Committee on this Act in 1998 is here 3rd April 2000.
Debate over Changes to the Matrimonial Property Act
Below is a summary of some of the points raised back in 2000 as the law changes were being considered. Many of the links will have expired.
Submissioners say forget fiddling with the 50/50 split
On Tuesday, the Justice and Law Reform Select Committee heard public submissions in Wellington on the Government's proposed changes to the Matrimonial Property Amendment Bill. The hearing continues in Auckland today. National's Tony Ryall and Anne Tolley say: "The economic disparity that can occur when a relationship breaks down must be addressed but giving lawyers an open invitation to 'have a go' in court is not the way to go....The majority of submissioners are really concerned about throwing division of property open to the courts to decide on a case by case basis." (link)
The definition at the centre of proposed changes to the legislation governing the division of property following relationship breakdowns needs more work, according to lawyers. Law Commissioner Donald Dugdale said he supported the changes, as it was much more sensible to have the rules for married and defacto couples under the same roof. However, a better definition is needed of what is meant by "a relationship in the nature of marriage" (link) 19th July 2000.
MPA Wording Change Not Enough
A suggestion to change the wording of the Matrimonial Property Bill has not met with the approval of the Catholic Church, who say marriage should be treated separately. Attorney General Margaret Wilson this morning said she would not oppose a call from a group of Labour MPs to put the words "marriage, husband and wife" back into the legislation to preserve the sanctity of marriage. Addressing the Select Committee, Cardinal Thomas Williams said "Bringing marriage and other forms of relationship into the one bill has the effect of diluting marriage and detracting from its unique status." (link)
National welcomes Margaret Wilson's back-down on matrimonial property law, Opposition Leader Jenny Shipley said today. "Labour is at last showing some signs of common-sense in its attitude to matrimonial property law. It looks as if Margaret Wilson has acquiesced to pressure from a group of Labour MPs who don't accept the approach she had tried to introduce. "It seems she will be prepared to acknowledge the concepts of 'marriage,' 'husbands' and wives' in the legislation." (link) 18th July 2000.
New website on Relationship bill
Do you know anyone living in a de facto relationship? Well, they are getting married on the 1st of July next year! You didn't know? Well, neither do they! That's because the Government is changing the rules. Check out the new National Party website: http://www.fairsplit.org.nz - full media release (link) 14th July 2000.
National"s Womens Affairs spokesperson Anne Tolley says "Attorney General Margaret Wilson is planning to marry more people than Reverend Moon. But at least the Moonies made a conscious decision to get married. Many New Zealanders in de facto relationships are completely unaware of how the planned changes will affect them. They have made a conscious decision not to get married and should not have this commitment forced on them by the Government. (link)
Patricia Schnauer, lawyer and former Act MP says: "At the risk of sounding sexist: men beware. If you survive the unions and the taxman¸ still stay alert because another powerful group - the feminists have you firmly in their sights...The proposed [property] legislation tips the scales so markedly in the woman"s direction it"s hard to see how fairness will be achieved....Have no doubt the focus of this Bill is to benefit women." (link) 13th July 2000.
Should equity be a social goal?
If equity is defined as equal treatment of equals, equality before the law, or a compassionate concern for the genuinely needy, it deserves a place among our moral beliefs and public policies. If equity is defined as equality of material wealth or equality of money income, it should be rejected both because it lacks an ethical foundation and because seeking to achieve it in practice does more harm than good. Dr Cathy Buchanan and Professor Peter Hartley (link) 6th June 2000.
Children suffer most
The proposed law changes are well overdue. Far from being a gold-diggers' charter, they will go some way towards redressing the gross financial inequities at present suffered by those who take on primary childcare roles. That will, in turn, benefit children, who suffer enough stress and confusion when their parents separate without adding financial deprivation. It is a pity that some male MPs and fathers do not recognise this. Catriona MacLennan, barrister. (link) 5th June 2000.
Respect the right to choose
Most women I know with high-paying jobs don't let little hiccups like marriage and babies get in the way of their lives. They continue with their careers and somehow fit it all in. So who are all these hard-done-by women who really sacrifice their careers? For many women the prospect of staying home all day and being supported by their man is - far from a burden that they're somehow coerced into - exactly what they feel they want at the time. It's a choice they willingly and readily make. But it is a luxury not afforded to men. Even while the number of house-husbands grows slowly, general opinion suggests that any bloke who voluntarily opts out of the workforce to be supported by his wife is a bit long-haired, sandal-wearing alternative-lifestyler. The concept that men must constantly work, be the main breadwinner and support the family is an oppressive one. (link) 5th June 2000.
Women Should Say "I Don't"
Opposition Women's Affairs spokesperson Anne Tolley is encouraging women to say "I don't" to the select committee considering changes to matrimonial property legislation before the Government says 'I do' for them. "In the submissions to the two original bills, only 7% of the 273, mentioned giving support for combining matrimonial and de facto property legislation. The submissions of two women's legal associations emphatically opposed such a move. We should be making the rules more clear - not giving judges increased discretion to work it out on a case by case basis. Family courts are logjammed now with the flood of domestic violence cases. A deluge of matrimonial property cases will only add to this." (link) 1st June 2000.
The Matrimonial Property Bill, which took another step down the aisle in Parliament today, will shackle thousands of New Zealanders with new obligations and an uncertain future, says Opposition Justice spokesman Tony Ryall. "This Bill will leave New Zealanders who had no intention of committing to one another to queue with thousands of others for a family court judge to decide on their entitlement. Lawyers expect to see 90% of matrimonial property cases in the courts as a result of this legislation." (link) 1st June 2000.
Matrimonial Property Bill
Giving gays in de facto relationships property rights is probably the least controversial provision in this Bill.
There is overwhelming support to amend the law to enable gays to be able to legally
register their relationship. The controversial provisions are those that give the courts
wide discretion to alter the 50/50 split of property after divorce and grant
lifetime alimony. This reverses a bi-partisan approach to family law 20 years ago,
Parliament decided that long legal fights over matrimonial property were wrong and decided
on 50/50 and a clean split. The Bill promoted by a few family lawyers will make them rich
and see divorcing couples tied up in expensive litigation for years. Margaret Wilson
suffered a significant blow when Parliament voted to send her ideas to a select committee.
29th May 2000.
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Women will pay the price
for the Government's under-estimation of the impact the new matrimonial property legislation on the Family Courts, says Opposition Women's Affairs spokesperson Anne Tolley. "A flood of cases will be filed following this legislation, only to be caught in the logjam that already exists." (link) 25th May 2000.
Lawyer Deborah Hollings, says that her client 'Z', an Auckland wife who won a portion of her wealthy husband's future earnings - would be delighted with the Matrimonial Property Amendment Bill. Although the payout was overturned by the Court of Appeal, it caused a furore about inequities in relationships where one partner's career prospects and earnings are 'restricted by child-rearing.' Australian judges award up to 70 per cent of existing assets. She says the bill will benefit mostly "women who do not have dependent children often middle-class families." (link)
Associate Justice Minister Margaret Wilson confirmed in Parliament yesterday she had been advised the proposed changes would spark more litigation when couples broke up. The Government has come under heavy fire for the proposed changes, which would give de facto and same-sex couples the same property rights as married couples. (link)
Public opinion on the Herald discussion board has been mostly negative: "I call myself a feminist (at least I did until the man-hating pro-natal brigade hijacked it) and I think it's ridiculous for women to demand equal rights but then also want to leech off some bloke because they are too stupid to get a real job, and are content to play the dopey housefrau and nursemaid. Most marriages end in divorce - don't hitch your wagon to a man in the hope that he will support you all his life cos it ain't gonna happen, sister. Make sure that when the marriage ends that you are covered - and that does NOT mean demanding all your ex's future earnings, it means getting a career and a life of your own. So you've got kids? Why should you have to look after them then - are they welded to you or something? Or do you just not like the fact that the noncustodial parent is the one who ends up paying?" debate in the Herald online.
Government backs down over 'gold digger's charter'
The Government has been forced to back down over its plan to push through controversial changes to matrimonial property laws, after opposition parties united in demanding public consultation. Attorney General Margaret Wilson bowed to the pressure, agreeing to reopen the debate on de facto and same-sex couples by sending the bill back to a select committee for submissions. (link)
The National Party has slammed the Property Relationships Act as a "gold digger's charter." It says the legislation has the potential to clog the courts, blow the legal aid budget and destroy the institution of marriage through its abandonment of terms such as "husband" and "wife." (link)
Yesterday's decision to refer the sweeping changes introduced by way of Supplementary Order Paper (SOP) to the Matrimonial Property Amendment Bill to select committee is a victory for democracy," said Young Nationals Chair Daniel Gordon (link)
Green MP Sue Kedgley said she was mystified by the attacks of the National Party, New Zealand First and Act against the new economic disadvantage provisions of the bill, which are needed to give redress to the many thousands of parents, mainly women, who devote years to unpaid full-time parenting of their children, and who are disadvantaged under the present provisions of the Matrimonial Property Act. "The heart of the problem is that when parents look after their own children, they receive no remuneration," she said. "Studies show that a parent who has been looking after children on a full or part-time basis are often financially worse off after divorce, while the partner who has been in the paid workforce is financially better off. (link) 24th May 2000.
Greens Request Second Look At Property Bill
"While we strongly support the provisions in the bill, we want to ensure it works as well as possible, and there is a major issue of democracy here," Green Co-Leader Jeanette Fitzsimons said today....The bill includes fundamental changes that could affect every relationship in the country." (link)
National's Justice Spokesman Tony Ryall said: "National has a number of concerns about the Bill. If passed in its present form, it will see most matrimonial disputes ending up in court - only 10% do now. These cases will take years to solve and will be a new gravy train for legal aid lawyers. The Bill undermines the long-standing 50/50 split rule, and changes the clean break principle so that one partner will end up paying alimony way beyond the boundaries today. (link)
Opposition Leader Jenny Shipley said "It took pressure from all sides of Parliament, but it is great news that Labour has finally been brought to heel on its proposed shake-up of matrimonial property law. (link)
The Government decision gives a month for public submissions, but some MPs are concerned that may not be long enough. It is expected that the Select Committee will report back to Parliament for further debate by 1st August. (link)
ACT's Stephen Franks said Margaret Wilson's move to allow just one month for public submissions was an insult. "The degree of public interest will mean that it is unlikely that the Justice and Electoral Select Committee could get through hearing submissions, drafting amendments and report back in a considered way by Ms Wilson"s deadline of August 1," he said. "The essence of the multi-party move today that forced Margaret Wilson to this was to try to take family law back away from ideological posturing and to ensure that family law is stable and doesn't change every time there is an election," he said. (link)
It gives enormous power and discretion to Judges. The drafting is obscure. But it is so bad in principle that even exemplary drafting would still drag thousands of unhappy, separating couples into a quagmire of litigation. Bitter people can't avoid lawyers exploiting uncertainty. Advice on either side will urge their party to "try it on" as no one knows what the Judge will think is fair. It may depend on the Judge. Is equality equity? (link)
United New Zealand leader, Hon Peter Dunne is concerned that there are aspects of the proposed amendments which appear to go beyond the scope of simply extending the existing legislation. They introduce far-reaching changes that will have implications for existing married couples they may be unaware of. (link)
A digest of the Supplementary Order Paper is here:
(link) 23rd May 2000.
The headline debate at the moment focuses on the government's announced intention to extend matrimonial property rights to de facto couples and same sex couples. The Attorney General, Margaret Wilson, alluded to another significant change being planned when interviewed on National Radio. She said that the act needs to be changed because the mothers who have stayed home and looked after the children may not be getting enough when the marriage dissolves. While everyone is busy debating whether the act should cover de facto and same sex relationships, the intention to move toward unequal division of property is not being discussed at all.
Wilson says "The Government proposes extending protections to those couples who have been living in a relationship in the nature of a marriage as determined by the courts for at least three years. There will be options for couples who so desire to opt out of coverage by the new measures as long as they agree to make their own legal arrangements appropriate for any future ending of that relationships." (more)
There is already scope to override pre-nuptial agreements. There have been efforts for a long time to block whatever means there are to retain assets brought in to a marriage. Note section 18 of the Act on contribution to the marriage partnership and note section 21, subsection 8 : (8) An agreement under this section shall be void in any case where ---(b) The Court is satisfied that it would be unjust to give effect to the agreement. 6th April 2000.
Unequal Property Splits to Increase
Judges settling disputes after failed relationships may soon be given discretion to take into account future income and whether one partner sacrificed a career. (link)
The Law Society is urging the Government to widely publicise planned changes to the Matrimonial Property Act, which will include provisions for de facto and same-sex couples. Lawyer Vivienne Ullrich says the changes are complex and the Government needs to ensure those affected are aware of what is planned and able to have their say. (link)
About 236,000 New Zealanders living as couples for more than three years will have to sign "prenuptial" contracts if they do not want to split their belongings equally when they part. (link)
A MENZ Issues article on asset protection is here.
Community reaction to the proposal has varied from enthusiasm to wariness. "If a live-in lover left after three or four years he might want half of the house," warns one man. Christchurch Methodist Mission superintendent David Bromell said it raised new issues for older people who chose not to marry a new partner after the death of a spouse. University of Canterbury Students' Association president Jarrod Gilbert said the changed law could have a major impact on students who chose to flat with their partner. (link)
The Herald says "Property rights for de facto couples can only be a good thing, especially for their children. There is no quicker way to poverty than when the main income-earner - so often the male - leaves a household." (link) 4th April 2000.
Cabinet considers de facto rights
Associate Justice Minister Margaret Wilson is now proposing further changes to extend the Matrimonial Property Act to cover de facto and same-sex partnerships. (link)
Many lawyers welcome the move, but say the definition of de facto will be the tricky part. (link)
De facto couples would have the right to "opt out" of dividing their property, provided that was not clearly unfair to one of the parties. (link)
Jenny Shipley says "the Government has raised big questions with its plans to change the law to 'more fully address situations where there are likely to be significant disparities in income and living standards.' This sounds like it is a fundamental change to the 50:50 split that New Zealanders have come to rely on. We don't know how far-reaching it will be but it is potentially highly divisive and there hasn't been any consultation with the public." (more)
ACT Justice spokesman Stephen Franks. says: "This Government always talks loudly of giving 'rights' to some, when in reality, it wants to disguise taking away rights of others - in this case the right to choose to not make a commitment that extends to marriage." (more)
Christian Heritage Party Leader Graham Capill says "sinister forces have been at work for a very long time to destroy the family. The Gay Liberation Front Manifesto of 1979 stated blatantly, 'We, along with the women's movement, must fight for something more than reform. We must aim at the abolition of the family so that the sexist, male supremacist system can no longer be nurtured there'." (more)
Govt Dictates Changes To Property Rights
National understands that the Cabinet will tomorrow consider major changes to the way in which matrimonial, de facto and same-sex property rights will be handled, Opposition Leader Jenny Shipley said today. "We strongly believe de facto and same-sex issues should be advanced each with a separate statute so that the special nature of the relationships can be better reflected. (more) 2nd April 2000.