Submissions on Supplementary Order Paper No 25, Matrimonial Property Amendment Bill    

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Submissions made in 2000 to Supplementary Order Paper No 25, Matrimonial Property Amendment Bill

A draft submission from Robert Murray is below




FARE is a national organisation aiming to assist families affected by the breakdown of marriages and parental relationships.
FARE is committed to equality in all issues affecting families, and to improving outcomes for children, the family and parents.
FARE wishes to make an oral submission to the Justice and Electoral Select Committee. This submission is in support of the oral submission to the Justice and Electoral Select Committee.

FARE makes the following submissions:

1-NZ Public Uninformed, And Uninvolved In Formulation of SOP 25.
SOP 25, as it currently stands, will have profound effects on marriage, children, families, parents, and property ownership. It introduces huge changes to the very fabric and culture of our society. Yet, the general public currently has almost no understanding of the profound short and long-term effects of this legislation. Neither this Government, nor the previous Government, has provided adequate documentation to brief the New Zealand general public.

The general public will have no real understanding of what is being done to them until they have examples placed before them of what this legislation means in practical terms. For instance, this legislation will radically change the perception of marriage in New Zealand, and probably replace the current 50:50 property splits with potential splits such as 80:20 or 90:10. Further, until the public can assess such changes in terms they can relate to their own personal terms, the public will have no grasp of where the Government is taking their lives.

The ideas encompassed in this legislation have, up till now, been socialised and promoted in isolation by a select elite group consisting of certain politicians, government officials, the judiciary, ‘favoured’ pressure groups and elements within the New Zealand Law Society. The New Zealand general public has been generally excluded from the dialogue.

The lack of public debate on SOP 25 (one and a half pages being all that was provided by this select committee [Ref 1]) contrasts sharply with environmental issues, and particularly the GE food debate, which now has a $4.8 million royal commission considering and documenting the issues for the next 12 months. Surely major changes to the family, as the most important component of the New Zealand environment, deserves a better public briefing than one and a half pages?

This government shelved the Shared Parenting Bill because it claimed a wider investigation of the issues was required. Yet the government is rushing through this legislation with the most inadequate supporting information and public debate. SOP 25
presents only one narrow and restrictive set of options for the public to consider.

2-Unbalanced Debate
Limited internal documentation on the subjects covered in SOP 25 and the associated Bills has been produced and circulated within Government. This documentation, most of which has never been brought to the attention of the general public, has been generally unbalanced and has been based on flawed ideologies and orthodoxies. These orthodoxies include assuming there exists in New Zealand (without question or analysis): a preference for (maternal) sole custody  that children effectively belong to the mother; that men are virtually solely responsible for problems such as domestic violence and child abuse; that men are socially inferior and deserve to be marginalised in the family context.

The limited documentation produced by Government to date is unsuitable for briefing the New Zealand general public on the wide range of issues raised. Research into economic outcomes by New Zealand Government publications has favoured results that are totally out of line with more balanced overseas research. Methodologies used in New Zealand to measure and allocate wealth before, during and after relationships break up are slanted mostly in favour of so called custodial parents.

There are two sides to every story. To date, the Government and its officials have effectively presented only one side. Government officials have had a profound effect on leading what little public debate has taken place so far. Conspicuously missing from Government research and Government documents are issues such as  how earners are generally forced to spend less time than they would wish with their children, compared to carers.  This arises because of the responsibility earners have of providing financially for the family. Caring for children is a preferred option for many, and offers desirable lifestyle choices, especially when all the children are at school. The overwhelming majority in our society regards children and families as an asset. The government and advocates of SOP 25 seem to treat them as a liability. Most people have children and families because they very much want to have them. There is no emphasis on children and their needs, the focus is on parents

3-Halt Proceedings On SOP 25 Till Proper Consultation Done
The Justice and Electoral Select Committee must immediately halt all consideration of SOP 25 and the associated legislation until the general public of New Zealand has some idea of the profound social and legal implications of what is proposed.

The following are the steps that should be followed in formulating any new family law, including the Bills/SOP 25 currently before this Select Committee:

a) Appoint an independent body to oversee the process, and to prepare discussion documents. Independent means having no ideological position, or long term professional or financial gain from the outcomes, and being committed to preventing these factors affecting the process.
b) Publicly call for initial submissions from all interested parties.
c) Use the submissions to formulate and publish a public discussion document. This must be in plain non-legal language so that the people of New Zealand can understand the issues and make meaningful contributions.
d) Call for public submissions based on the discussion document.
e) Analyse submissions and publish a report for the general public.
f) Acceptance of the report by Parliament/Minister.
g) Formulate Bill, based on report.
h) Normal Parliamentary process, with Select Committee hearings etc.

Unless this Select Committee takes action, then this committee and the so-called consultation process of select committee hearings is nothing but a farce. The public have been reduced to a state of confusion, and most will not be able to comment in a meaningful manner. The general public has had no meaningful stake in the hundreds of pages of legislation that make up the proposed law changes.

4-Parliament Must Make Social Law, Not The Judiciary
It is an accepted principle of our New Zealand democracy that elected and accountable parliamentarians make our law, not unaccountable public officials (such as judges).

Politicians must set the outcomes that will occur from SOP 25 (such as unequal property splits). It is not sufficient for Parliament to set vague principles such as ‘economic disadvantage’ or ‘indirect actions’ amongst others, and then leave the New Zealand public to spend hundreds of millions of dollars litigating for years to have judges eventually say what these vague principles mean in practical terms.

Benchmarks have been provided to this committee. It is now up to those politicians that support SOP 25 to make the practical outcomes of this legislation known in advance in a form the New Zealand general public can readily understand.
[Benchmarks are being prepared and will be published soon].

4.1-This Legislation An Example Of How The Judiciary And Politicians Collectively Avoid Public Accountability
The process of Government setting vague and poorly worded social principles in legislature, and having them interpreted by judges, has become a means for both parties to introduce radical new social policy and to collectively avoid accountability to
the New Zealand public.

The process of letting case law set social policy also provides a time delay (usually of some years) before the public realises the impact of the original social policy/legislation. Thus the Government is further isolated from accountability for creating and passing the original social legislation. Further, the judiciary does not consider the wider social implications of the judgements they make.

The New Zealand public is then told the outcomes, and any problems are not the Government’s fault-it is the judges interpreting the law and the politicians can’t interfere with the judge’s decisions. The judges say they are only interpreting the intent of Parliament. The process is diffuse and leaves the public with no one to effectively hold accountable. Further, most of these cases take place in closed courts and cannot be reported. Being able to take a case to higher courts of appeal (usually at huge financial cost to the litigant(s) and/or legal aid/the taxpayer) does not constitute public accountability.

This process is portrayed by the politicians and the judiciary as each being independent of the other. In fact, it is used to introduce radical new social policies in a way that avoids public input and accountability by the politicians and the judiciary. It is also a license for certain lawyers to become very rich at the public’s expense. Lawyers are financially encouraged to make radical interpretations of the law.

4.2-Lack of Public Confidence In the Legal Profession and The Judiciary
The poor performance to the legal profession and the judiciary on family law issues in recent times has severely undermined public confidence in both institutions. This is further reason why they must not be allowed to set social policy in the family courts.

The judiciary has been conspicuous and vocal in their support for the provisions of this SOP 25, and have for some years been making judgements in favour of unequal spitting of property, spousal maintenance, and manipulation of future earnings and superannuation [Ref 2 and Ref 3]. Much of this has been done in defiance of the existing law and the intentions of Parliament. The judiciary, without public mandate, has signalled their intention ‘to be more vocal in the development of family law’. [Ref 4]

The fact that many of the provisions of SOP 25 have already appeared in previous court judgments is used by Government members to justify these social policy changes. The previous court judgements are not acceptable to the public, therefore nor is the excuse that the law is simply being modified to reflect the previous court judgements.

The opinions openly expressed by the judiciary have almost exclusively represented only one side in this debate, and have made the judiciary appear almost indistinguishable from biased parties such as the Ministry of Women’s Affairs. The judiciary, instead of being balanced and independent mediators, have become biased advocates for one side in the gender debate.

Further, individuals who have openly supported one side in the gender debate have been appointed to the judiciary. These individuals have gone on to show unacceptable bias in their judicial judgements. They and continue to severely damage the credibility of the judiciary.

Further, it appears to be impossible to take a direct complaint against individual judges, they seem to be totally unaccountable to the public.

5-Wealth Differences Between Men and Women Not Significant
Average wealth differences between men and women have levelled in recent years. Advocates of the social policy changes in SOP 25 have come up with extreme individual cases to justify further radical changes, but the arguments used by these advocates have been mostly unbalanced. Further attempts to alter the balance of wealth from its current situation of close to parity will have profound implications, such as destroying the incentives to work for a large sector of the working community.

Hyman reports that women's share of total wealth in New Zealand rose" from 30.5 per cent in 1980-81 to 38 per cent in 1987-88, partly as a result of more equal sharing of property after divorce". [Ref 5]

A more recent study by Infometrics, using 1997 data, found that women's average wealth was 86% of men's[Ref 6]. This figure also does not make any adjustment to consider unrealised claims on partners' assets through marriage, as with superannuation. Such adjustment would further reduce the gender difference. Noting that there are about 6% more women than men aged 20 and over [Ref 7], this translates into women directly holding 47.5% of total wealth, and having actual but unrealised claims on portions of the other 52.5%. Superannuation is 18.1% of males' total wealth, and 8.1% of females' total
wealth. When superannuation judgements are taken into account (based on how current case law treats superannuation, and assuming this publicly unapproved arrangement continues) then women probably already hold greater than 50% of wealth.

6-Affirmative Action Is Creating Unacceptable Distortions In The Social Fabric of New Zealand
With SOP 25 the Government seems to be trying to progress a secretive and undeclared affirmative action agenda. It seems family relationships, work in the home, and child-care are being used to achieve major transfers of wealth between the genders. At the same time this Government has voted down the Shared Parenting Bill, which sought to give earners equal recognition as parents.

The Government is effectively promoting unequal division of property, at the same time maintaining unequal parenting. This is patently unjust social policy. The Government is seeking to maintain unequal parenting, and at the same time create further alimony and unequal property splits. Perversely, unequal parenting and custody are openly used by advocates of SOP 25 to justify alimony and unequal property splits in favour of the carer.

The Government is apparently using SOP 25 to progress a secretive and repugnant social engineering exercise. This social engineering and affirmative action campaign will create further distortions and orthodoxies that will even more severely strain New Zealand’s social environment. Affirmative action has had to be abandoned in other countries because of the backlash that inevitably occurs.

New Zealand already has one of the worst records for family and children’s outcomes in the western world, SOP 25 will make things even worse.

7-Government Has Shown Poor Faith With The Community
It is a matter of public record that the Government did not even wish this SOP 25 to go to select committee for public submissions. On top of this, public and government information about the major social changes that are planned is almost non existent. What little information has been produced is biased. This closed and secretive approach, which has the effect of keeping the general public in the dark about what is happening, is typical of a Government that does not respect democracy or the needs of families and children. The government is not providing leadership, it is exhibiting the characteristics of an
elected dictatorship.

8-Government Appears To Not Respect Marriage Or Value The Family
SOP 25 will dilute the family and the institution of marriage in New Zealand. This is not supported by the majority of New Zealanders. Important alternatives, such as requiring defacto couples to actually register their relationship, have not even been offered to the New Zealand public as alternatives for discussion.

[1] Justice and Electoral Committee ‘Information Sheet on SOP 25’ – 7 June 2000
[2] The Dominion Sunday Times- October 27 1991 – “50:50 split unfair says divorce judge” (quoting Principal Family Court Judge Mahony)
[3] Family Courts: Some Questions for Consideration - Australasian Family Courts Conference 16 October 1999 – by Sir Ivor Richardson
[4] ‘Judicial activism and law reform’ – Judge PF Boshier, Butterworths Family Law Journal Sept 1999
[5] Hyman P (1994) Women and Economics: a New Zealand Feminist Perspective, Wellington: Bridget Williams Books, pp.219-220
[6] Wheeler Y C H (1999) Women's Equal Status: "Equal Worth", Final Report: Output 4, for The Australian Commonwealth/ State and NZ Standing Committee of Advisers for the Status of Women.
[7] Statistics New Zealand PCInfos database



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Draft from Robert Murray


I submit:

That this bill and SOP 25 accelerate and legitimize far reaching changes in the social and cultural make up of our society that will immediately impact negatively on our children and will have adverse consequences that are destructive to our stability as a society.

As legislation it is flawed in that

The reduced significance of marriage is the major concern of this law change. The recognition of marriage, by the State, is the primary means of establishing a secure and successful environment for children and recognising succession. This legislation demeans marriage and relegates it to parity with associations (such as same sex relationships) where those factors are irrelevant, at the very time when it is becoming blatantly apparent that the lack of two involved parents in children’s lives is having a profoundly adverse effect on society as we know it and is cumulative across the generations. Disregard for the law is increasing directly in proportion with the break up of the nuclear family. Given the importance of parents to children it would be more sensible for the Government to be elevating marriage and trying to promote longer term marriages by providing tax incentives. The cost of this would be easily recouped from the reduction in mental health demands and reduced prison populations that would automatically result. As a simple example - shared parenting would immediately reduce the demand for Ritalin by a hundredfold.

A possible minor consequence in terms of numbers, but significant in health outcomes, will be that demeaning marriage may well permit individuals between whom marriage is prohibited to live together openly and quasi legally: I cannot support a government or legislation that promotes incest.

Furthermore by dealing with this aspect (property) first this Government is establishing great difficulties for itself when it comes to dealing with other aspects especially children. It is my submission that this government’s prime responsibility is to our children: and as such it must ensure that their rights, as established in our law by UNCROC, must be dealt with first - especially UNCROC Article 18 - before any further legislation such as this is considered.

Finally most of the issues contained in this legislation need greater public debate and information before such radical changes to society’s structure should be undertaken.

I submit that the Government needs to adopt a different approach to this area of legislation and consider promoting marriage and familial partnerships perhaps through tax incentives, advertising campaigns for the importance of both parents for children and strengthening the base unit of society rather than devaluing it.


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