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1946 results in Family Law

Page 50 of 98

  • Chapter 10 - Valuation of Relationship Property: An Evaluation of Practice and Procedure

  • from PART II - WHAT PROPERTY SHOULD BE COVERED BY A PROPERTY SHARING REGIME?
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 229-256

  • Summary

    ’ Not everything that can be counted counts; not everything that counts can be counted’

    INTRODUCTION

    This chapter addresses the topic of ‘valuation‘ and considers how, when, and whether a property sharing regime should include ‘rules on valuation‘. The chapter will use the New Zealand Property (Relationship) Act 1976 (‘ PRA ‘) to frame the discussion.

    Rules are like clothes. They need to be adequate for the conditions. A straitjacket is of very limited utility. Relationship property litigation, no less than any other form of civil litigation, can be bedevilled by stultifying delay at considerable cost (both financial and personal) to litigants. Such delay is inimical to the delivery of justice and, in particular, to the inexpensive, simple, and speedy resolution of disputes, as is enjoined in the New Zealand statute. In a real sense, that creates an impediment to access to justice.

    Rules of civil procedure are designed to lubricate the litigation process. The question this chapter is designed to address is whether or not specific, or more precise, rules in relation to ‘valuation‘ would enhance and improve the operation of property sharing regimes. This requires a consideration of the role valuation plays in the overall scheme of the PRA and a review of how issues of valuation have been addressed by the courts over the past 40 years (with particular reference to the role of the expert witness). It also requires an acknowledgment that so long as relationship property litigation continues to be conducted along orthodox, adversarial lines, the ability to make radical changes to the way in which valuation evidence is adduced and tested will be limited.

    We conclude that, on balance, the introduction of ‘rules on valuation‘ would not marry with the principles of property sharing regimes and the need for the court to maintain a considerable degree of flexibility in dealing with valuation issues.

    THE RELEVANCE OF VALUE

    THE SCHEME OF THE NEW ZEALAND STATUTE

    The division of relationship property in New Zealand is determined by reference to the PRA. The principles governing such division are set out in Part 2 (Preliminary Provisions) of the PRA.

  • Chapter 11 - Should the Regime be Discretionary or Rules-Based?

  • from PART III - HOW SHOULD PROPERTY BE SHARED AT THE END OF A RELATIONSHIP?
    • By Joanna Miles, Reader in Family Law & Policy, University of Cambridge, England
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 261-292

  • Summary

    ’ The history of law is many things. But one of them is the story of an unremitting struggle between rules and discretion. The tension between these two approaches to legal problems continues to pervade and perplex the law today. Perhaps nowhere is that tension more pronounced and more troubling than in family law.’

    ‘ Most judges who are murdered by dissatisfied customers are killed by irate domestic litigants, not by criminals. The reason is simple: in other litigation, fewer emotional issues are involved; more important, the judge has less discretion.’

    INTRODUCTION

    As the opening quotations suggest, the topic explored in this chapter is neither easy nor, perhaps, for our judges even safe! I first reframe the question and clear some ground.

    REFRAMING THE QUESTION

    In reality, we are not confronted by a stark choice: discretion or rules. The question is better framed as the (elusive) search for the right mix of rules and discretion.

    However, even that framing obscures the fact that rules and discretion are not the only juristic tools available, and that both ‘rules‘ and ‘discretion‘ come in varying degrees of ‘ruleness‘ and ‘discretionness‘. As Cass Sunstein and others have catalogued, we have at our disposal an array of legal resources including untrammeled discretion, rules, rules with excuses, presumptions, factors, standards, guidelines, principles, and analogies. To that list we might add, or highlight, formulae as a particular type of – quantitatively expressed – rule. So there is a continuum of more and less rule-like modes in which a legal proposition might be expressed; and there are weaker and stronger forms of discretion, more or less trammeled by another of the tools in the box.

    Lastly, ‘the regime‘ that we are examining (or might wish to create) has (or will probably have) more than one component. The current legal framework for the division of capital assets on relationship breakdown in New Zealand itself comprises more than one mode of legal norm: a rule of equal sharing of defined property, subject to exceptions cabined by jurisdictional limits, at least one of which (Property (Relationships) Act 1976 (NZ) (‘ PRA ‘), section 15), once triggered, ultimately requires the exercise of judicial discretion to determine the extent of departure from equal shares.

  • Chapter 5 - Family Finances on Death of a Spouse or Partner

  • from PART I - WHO SHOULD BE COVERED BY A PROPERTY SHARING REGIME?
    • By Nicola Peart, Professor of Law, University of Otago, Dunedin, New Zealand
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 95-124

  • Summary

    INTRODUCTION

    On death there is an inevitable tension in succession law between property and family, between testamentary freedom and the deceased's duty to provide for family members. Balancing these two potentially conflicting interests is an ongoing challenge, affected by changing social values and expectations. If the deceased leaves a spouse (or a civil union partner, or de facto partner) a further tension may exist between succession law and a spouse's contribution-based property entitlement, referred to in this chapter as a relationship property entitlement. Should surviving spouses have the same relationship property rights on death as on divorce, or is death of a spouse sufficiently different from divorce that succession law should determine the rights of a surviving spouse?

    The common law and civil law jurisdictions have responded differently to this question, while New Zealand draws on both civil law and common law principles. It thus offers a unique perspective on the rights of a surviving spouse or partner. In common law jurisdictions, such as England and Australia, a separate property system applies to married couples on death and on divorce. Neither jurisdiction has a ‘matrimonial property regime‘ with a code of rules governing property division at the end of a marriage. If the marriage ends during the joint lifetime of the spouses the courts have discretion to adjust their property rights in the interests of fairness or justice for the family as a whole. That power is not available if the marriage ends because one of the spouses has died. A deceased spouse may freely dispose of his or her property by will. To the extent that the surviving spouse lacks financial provision, the courts have the power to override the terms of the will or the intestacy rules by ordering provision from the estate for the surviving spouse. Property distribution on both death and divorce is therefore premised on the duty of one spouse to provide for the other spouse, rather than on any property entitlement or notion of community property. It is a matter of family duty rather than property entitlement, and on death the duty is governed by succession law rather than the law governing property division on divorce.

  • Chapter 1 - Introduction

    • By Nicola Peart, Professor of Law, University of Otago, Dunedin, New Zealand, Jessica Palmer, Associate Professor of Law, University of Otago, Dunedin, New Zealand, Margaret Briggs, Professor of Law, University of Otago, Dunedin, New Zealand
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 1-10

  • Summary

    Marriage traditionally gives rise to property consequences, sometimes during the marriage, but nowadays more often when the marriage ends either during the lifetime of the parties or because one of them has died. In the European civil law jurisdictions, the property consequences take the form of an entitlement to an equal share of property classed as matrimonial property. These regimes, commonly referred to as community property systems, apply in default of agreement between the parties on divorce as well as on death.

    The common law approach to the property consequences of marriage differs significantly from the civilian approach. Following the abolition of the unitary principle of marriage by the Married Women ’ s Property statutes in the late nineteenth century, a separate property system applied in the common law jurisdictions. Each spouse was entitled to retain assets he or she had brought in to, or acquired during, the marriage. Marriage did not give rise to a property interest in any of the assets of the other spouse, not even the family home. However, by the mid-twentieth century, concerns about the adverse effects of the separate property system, particularly for women and dependent children, persuaded the legislatures in Australia, New Zealand, and England and Wales to pass legislation giving the courts discretion to adjust title to property between former spouses on separation and divorce. Australia and England and Wales still operate this individualised system of property adjustment, based on principles developed by the courts.

    England ’ s Matrimonial Causes Act 1973 lists a number of matters to which the court must have regard when making property adjustment orders on divorce, of which the welfare of any minor child of the family is the ‘ first consideration ’. The Act does not state what the aim of the court ’ s exercise of discretion should be. The courts have inferred that the implicit objective of their power is ‘ to achieve a fair outcome ’ for the parties involved.

  • Chapter 12 - Sharing Family Finances at the End of a Relationship

  • from PART III - HOW SHOULD PROPERTY BE SHARED AT THE END OF A RELATIONSHIP?
    • By Mark Henaghan, Professor of Law, University of Otago, Dunedin, New Zealand
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 293-328

  • Summary

    INTRODUCTION

    When marriages, civil partnerships (known as ‘civil unions‘ in New Zealand), and de facto relationships end, the division of family finances is inevitable. Family finances consist of all of the parties ‘assets in existence at that time. The expectation is that the law will provide a fair method for dividing the parties‘ finances. What is fair or not differs between societies and across generations. Lord Nicholls summed up the subjective nature of fairness well in Miller v Miller; McFarlane v McFarlane when he said:

    ‘ Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case.’

    After an examination of the underlying purposes of dividing family finances, this chapter focuses on how best to divide family finances, drawing primarily on legislative and judicial analysis from New Zealand and England and Wales. This chapter argues that all the ‘fruits‘ of a qualifying relationship, in terms of both capital assets and human capital (income earning capacity), should be shared equally between the parties upon the conclusion of a qualifying marriage, civil union, or de facto relationship (a ‘qualifying relationship‘).

    The chapter ultimately provides a case study of general international application as to how politicians and judges see their society, and what counts most in determining a share in family finances at the end of a qualifying relationship. It provides two possible formulas for ensuring that both parties receive their fair share going into the future.

    THE PURPOSES OF DIVIDING FAMILY FINANCES

    Law is a means of resolving disputes in a society. In order to effectively resolve disputes, the law must be clear in wording and purpose, it must be fair, and it needs to be accessible to all members of society, without the need for expensive litigation.

  • Foreword

  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp v-vi

  • Summary

    If there ever was a period of maturity in my professional life it was largely devoted to family finances either in silk, as a trial judge, or in the Court of Appeal. So when Mark Henaghan asked me to write a foreword for this book of collected papers I did not hesitate to agree, partly from my familiarity with the territory and partly from my regard for Mark and his ability to conceal his scholarship in waves of warmth and irreverence.

    The Introduction explains the context in which the papers were written:

    November 2015: the New Zealand Minister of Justice refers to the Law Commission a comprehensive review of the Property (Relationships) Act 1976 and requests recommendations for reform.

    December 2016: the four editors convene the International Colloquium at which the papers were presented.

    Ahead, as I write, lies the publication of the papers and the Law Commission's report and recommendations. I am in no doubt that this is how family law reform should be managed: Law Reform Commission expertise supplemented by international and comparative expertise to guide the legislators.

    New Zealand seems to have a healthy readiness to legislate in this dangerous territory: dangerous because many politicians have had personal experience and leaders fear that public reaction to legislation will depress their prospects of re-election. New Zealand seems to follow the precept instilled in children here: if at first you don't succeed, try, try, try again. Would that the Westminster parliament would embrace the same spirit of adventure. For the UK, excepting Scotland, we have been 45 years without major reform and it has had to be the judges who have re-interpreted the 1970 statute to reflect social and other change.

    As the editors write in their Introduction, the relevance of the themes analysed in the 15 papers is unrestricted:

    ‘ [T]he wider discussion to which this book contributes is an important one that must be ongoing. While the context in which these chapters were written was the reform of New Zealand's rather unique approach to the sharing of property in intimate relationships, we are confident that the ideas and debates discussed in this book will be of value beyond the shores of Aotearoa New Zealand.

  • Chapter 14 - Contracting Out of the Default Relationship Property Regime – Comparative Observations

  • from PART III - HOW SHOULD PROPERTY BE SHARED AT THE END OF A RELATIONSHIP?
    • By Jens M Scherpe, Reader in Comparative Law, University of Cambridge, and Director of Cambridge Family Law, England
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 357-392

  • Summary

    INTRODUCTION – THE CORE OF RELATIONSHIP RECOGNITION LAW

    The question at the heart of this paper is whether the parties of a legally recognised relationship should be permitted to opt/contract out of the default legal regime governing their property relations by entering into marital agreements (often also referred to as nuptial agreements). Unsurprisingly, the answer to that question depends very much on what legal consequences the underlying default system would bring with it – and what exact policies the jurisdiction in question pursues (or intends to pursue) with the default rules. As the purpose of this chapter is to offer some comparative observations on what is often simply referred to as ‘contracting out‘ (or opting out) of the default regime, it is therefore imperative to be aware of what the default rules are, taking into account the legal, social, historical, and political context of the jurisdiction in question. The rules on contracting out can only be understood against that background and, more importantly, the limitations that the jurisdictions have placed on this contracting out can only be understood against that background. These limitations reflect what, in that particular jurisdiction, is the absolute core of the law governing the relationship – the core which is so essential to the regulation of the relationship that it is not at the disposition of the parties and therefore cannot be opted out of.

    TERMINOLOGY AND FOCUS OF THIS CHAPTER

    Before describing the systems and explaining the rules on contracting out, it is necessary to say a few words on terminology. The title of this chapter speaks of ‘relationship‘ rather than ‘marital‘ property. In the twenty-first century, this increasingly will be the better term to use, with more and more relationships other than marriage being recognised by the law, including property consequences and/or regimes, in an increasing number of jurisdictions. Arguably, New Zealand has gone the furthest here: with regard to a central element of this chapter, namely the division of relationship property, only very few differences are now made between marriages, civil unions, and qualifying de facto relationships in New Zealand, all of which are open to couples irrespective of legal gender.

  • Chapter 7 - Classifying Relationship Property – A Radical Re-Shaping?

  • from PART II - WHAT PROPERTY SHOULD BE COVERED BY A PROPERTY SHARING REGIME?
    • By Bill Atkin, Professor of Law, Victoria University of Wellington, Wellington, New Zealand
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 153-176

  • Summary

    INTRODUCTION

    The New Zealand Property (Relationships) Act 1976 (‘ PRA ‘) is sometimes described as one of deferred community. It usually operates when couples separate or one of them dies, and thus its impact is ‘deferred‘ or delayed until a crystallising event. A critical step is determining what constitutes the ‘community‘ property, that is, what property is available for division. This is the ‘classification‘ issue. Under the PRA, the distinction is drawn between ‘relationship property‘ and'separate property ‘, the equal division rule applying to the former and not the latter. This is simplistic because the court has power in some situations to make orders affecting separate property, but we put that to one side for present purposes.

    The key classification rules are found in sections 8 – 10 with the definitions provided in section 2. In many respects these provisions are opaque and confusing. They are possibly the most complex in the world. The underlying philosophy behind them is not spelt out, though it is possible to discern what it might be. While amendments made by the Property (Relationships) Amendment Act 2001 (NZ) in general extended the relationship property pool, they did so modestly and were largely tacked into the pre-existing structure. Can New Zealand not do a lot better?

    The rules for classification should be based on appropriate principles. This chapter explores what these principles might be. Even so, the principles do not lead inexorably to just one model of classification. There is, I suggest, a spectrum of approaches to classification. The choices are stark at the edges but with a wide range of variations in-between. The implications of these options are many and varied but help us understand what is at stake. In this chapter, I recommend that New Zealand move to what is the left of the spectrum, as discussed later in Part III. It could be said that this involves taking the concept of partnership in the family law sense seriously.

  • Chapter 2 - Reconsidering Family Property Law in the Post-Marital Age

  • from PART I - WHO SHOULD BE COVERED BY A PROPERTY SHARING REGIME?
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 15-36

  • Summary

    INTRODUCTION

    The last 40 years or so have seen massive changes in family life in many post-Christian countries. Marriage is no longer the only accepted basis for family formation and, indeed, in many countries more children are born outside of marriage than within it. Ours is, to some extent, a post-marital age. What kinds of relationships, then, should be covered in default rules for property division if the relationship breaks down? These issues are explored through three vignettes:

  • – Cameron and Sandra are in their mid-20s and are contemplating if and how to formalise their relationship.

  • – Amir, a refugee from Afghanistan, is married to Sanaubar. They have three children together. He takes a second (de facto) wife, Basira, and they also have a child together. The relationship with Basira does not last.

  • – Melissa has had a succession of relationships, including a failed marriage. She gains sole ownership of the former matrimonial home in the divorce. Then she lives with Jim for over five years in an intimate domestic relationship; but neither want to marry. Finances are kept separate.

    • In the light of these vignettes, consideration is given to whether dyadic Judaeo-Christian marriage can remain the paradigm for a default law of property division on separation.

    THE EMERGENCE OF THE POST-MARITAL AGE

    The last 40 years have seen very rapid social change, especially in terms of family life and moral values about sexual behaviour in Western countries. New Zealand, it seems, is no exception to the patterns of change in post-Christian societies.

    The idea that many of these societies could actually be post-marital societies, as well as post-Christian societies, may at first be confronting. Marriage still remains reasonably popular as a basis for a long-term commitment amongst university-educated people in Western countries. It remains obligatory as the basis for family life in deeply religious communities. For many in the lesbian, bisexual, gay and transgender (LBGT) communities, achieving legal recognition of their relationships as marriages has been a fervently sought goal.

    However, as university-educated people moving in professional circles, we need to resist the temptation to see the world around us through the coloured glasses of those with whom we associate. For a large proportion of the population in Western societies, marriage is no longer seen as the conventional norm for founding a family.

  • Chapter 13 - Should a Property Sharing Regime be Mandatory or Optional?

  • from PART III - HOW SHOULD PROPERTY BE SHARED AT THE END OF A RELATIONSHIP?
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 329-356

  • Summary

    INTRODUCTION

    The subject of contracting out of a statutory relationship property regime begins with the regime that would otherwise apply. Only with a proper understanding of that regime can one decide whether the grass in another paddock might be greener. The default regime applicable to marriages, civil unions, and de facto relationships in New Zealand is currently the Property (Relationships) Act 1976 (NZ) (‘PRA‘). The PRA was an inspired social ideal compromised by its inept execution. The inept execution is the principal reason that so many couples presently have to contract out.

    The New Zealand Law Commission commenced a review of the PRA in 2016. There is now an opportunity to substitute a statutory regime which is not merely enlightened in its social goals, but goes on to achieve them on a sound technical footing. That will require a reform which is courageous, imaginative, and fundamental. The downside is that we will be jettisoning our investment in a very large body of authorities. However, they are authorities encrusted onto a flawed framework. The reward of a new regime is that if we go about it in the right way it will be more simple and logical to apply. It will also remove the need to contract out.

    RATIONALES FOR REDISTRIBUTING ASSETS ON SEPARATION

    Relationship property law is mainly about the way in which a couple's assets are redistributed on separation. For the reformer, many other important issues need to be resolved along the way. These include the kind of regime (unitary, separate, full, or deferred community), the way in which the regime is applied (rule-based or discretionary), the relationship between the regime and spousal support (integrated or distinct), and the couple's relationship with creditors (enforcement against either, or both, and on what basis). But the topic of real interest to most couples is simply how much each will get if they separate. As that is what drives contracting out, it is the focus of this chapter.

  • PART III - HOW SHOULD PROPERTY BE SHARED AT THE END OF A RELATIONSHIP?

    • By Nicola Peart, Professor of Law, University of Otago, Dunedin, New Zealand
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 257-260

  • Summary

    The chapters in Part III of this book address the concept of sharing property following the breakdown of a marriage, civil partnership, or de facto relationship. As in the preceding two parts, the focus in this part is on common law jurisdictions, with New Zealand's sharing regime featuring prominently. But this part of the book also includes a chapter on the matrimonial property regimes in the civil law jurisdictions to provide a comparative perspective on property division. In most common law jurisdictions, the property sharing system applicable on relationship breakdown does not apply when a relationship ends on death of a spouse or partner. New Zealand is unusual in that regard. The application of its sharing regime on death is addressed in Chapter 5 in this book.

    The idea of marriage as a partnership to which both spouses contribute equally, albeit in different ways, became part of the common law system only in the latter half of the twentieth century. The Married Women's Property Acts adopted by the common law jurisdictions in the 1880s enabled married women to acquire and deal with property in their own right. It liberated women from their husband's coverture. But the separate property system that replaced coverture treated spouses virtually as strangers for property purposes. Rights to property acquired during the marriage were determined by the general rules of common law and equity, normally to the benefit of the husband. There was no appreciation then that his wife's domestic work and child care had economic value and freed him to accumulate assets for the benefit of the family as a whole. Social changes following World War II, including the increased participation of women in the workforce, made the courts and, eventually, the legislatures aware that the application of general property rules was leading to unjust outcomes on marital breakdown, particularly for women. Characterising marriage as a partnership to which both spouses contributed in different but equally valuable ways allowed spouses to share in the fruits of their partnership.

  • PART II - WHAT PROPERTY SHOULD BE COVERED BY A PROPERTY SHARING REGIME?

    • By Jessica Palmer, Associate Professor of Law, University of Otago, Dunedin, New Zealand
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 149-152

  • Summary

    In addition to identifying to whom a property sharing regime should apply, as discussed in Part I, a key question that must be answered is over what property should such a regime apply? What might seem the obvious answer – property owned by either or both of the parties to the relationship – is too simplistic. The chapters in Part II of the book consider the wider question of property identification through analysis of three more specific enquiries. While the chapters here place significant emphasis on New Zealand's regime, as do many of the chapters throughout this book, the questions posed and the responses suggested provide helpful reflections for thinking about the scope of property sharing regimes more generally.

    Property is acquired for all sorts of reasons and for many different uses. A link between the property and the relationship that would justify sharing of the property between the partners on dissolution of the relationship may not be altogether clear. Some property may be used by both partners in their day-to-day living within the relationship, while some is used or enjoyed only by one of the partners. Some assets are acquired using income earned during the relationship, but some may have been received by way of gift or inheritance or acquired before the relationship commenced. The first enquiry, then, is should all property owned by the parties to the relationship be captured by a property sharing regime?

    Bill Atkin addresses this question in Chapter 7. He identifies a spectrum of approaches available for the exercise of classifying property either as separately owned and outside the scope of the regime, or subject to division between the parties. The spectrum ranges, at the one extreme, from a presumption that all assets owned by either of the parties are to be shared, to, at the other extreme, the exclusion of all separately owned assets from the pool of property to be shared. Atkin advocates a position toward the ‘all assets‘ end of the spectrum in order that the concept of partnership is taken seriously.

  • Chapter 8 - What to Do about Trusts?

  • from PART II - WHAT PROPERTY SHOULD BE COVERED BY A PROPERTY SHARING REGIME?
    • By Jessica Palmer, Associate Professor of Law, University of Otago, Dunedin, New Zealand
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 177-202

  • Summary

    INTRODUCTION

    There are two critical issues for any matrimonial or relationship property sharing regime: Which property of the parties to the relationship is to be captured by the regime? And how is that property to be shared? These are fundamentally questions of policy that, once decided, give way to questions of implementation by law. In modern times, implementation is usually a matter of statutory law. The primary policy currently applicable in New Zealand and commonly ascribed to elsewhere is that property owned by either party that was shared within the relationship or produced by the relationship ought to be divided equally between the parties upon dissolution of the relationship. Indeed, Professor Atkin suggests in his chapter that the goal should be complete sharing within the relationship and that the starting point ought to be that all property owned by the parties is relationship property.

    There are obviously many questions of detail that arise out of this approach but a basic presupposition is that the relevant property to which the regime can apply must be owned by either or both of the parties. Yet, one of the most controversial issues relating to property division regimes in recent times is whether such regimes can and should extend to property held on trust where neither partner has a fixed or vested beneficial property interest.

    There are various ways to respond to the problem. One might say that the question of what a spouse or partner owns ought to be decided in accordance with orthodox rules of trust and property law and that a property sharing regime must apply consistently with those rules for reasons of certainty and sanctity of property rights. Alternatively, it can be argued that our notion of property may need to be broadened to recognise not only legal ownership but also real or practical control over assets so that a spouse who has such control or access ought to be considered the owner of the assets or at least the owner of something of value.

  • PART I - WHO SHOULD BE COVERED BY A PROPERTY SHARING REGIME?

    • By Margaret Briggs, Professor of Law, University of Otago, Dunedin, New Zealand
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 11-14

  • Summary

    Questions are frequently raised in family law jurisprudence about the meaning of ‘family‘. Why, and for what reasons, does the state recognise some relationships but not others? Should ‘family‘ be an inclusive or an exclusive club? The responses to these questions are not immutable, since the notion of ‘family‘ is a fluid concept influenced in large part by social attitudes. In recent decades many Western jurisdictions have experienced major social changes that have directly impacted on what we take to mean by the term ‘family‘. Factors including the increasing incidence of unmarried cohabitation, more single parent families, and more blended families have all contributed to weaken the status of the traditional family unit (that is, a family consisting of two married parents and their children) as the predominant family form.

    Part I of the book considers a discrete aspect of the wider ‘family‘ issue – namely, in these changing times, which ‘family‘ relationships should be regarded as subject to the rights and obligations attendant on a property sharing regime? In the context of property division this inquiry is of no small importance, since deciding exactly who should be recognised is an important antecedent to determining what types of property should be included in a sharing regime and even the shape of the regime itself.

    There are significant differences in the way that individual countries apply inclusion and exclusion criteria to the types of family relationships that are subject to family property laws. Some jurisdictions regulate the property affairs of married couples only, others include couples in registered civil partnerships, and some go so far as to include unregistered cohabitants whose informal relationships function in a ‘marriage-like‘ way. On another level, some jurisdictions put the interests of the children of the family at the forefront of any property division between the parents, whereas others treat children's interests as a largely separate issue from that of the division of the relationship property between the parents. On yet another level, different countries treat relationships that end on separation and relationships that end on death in different ways.

  • Chapter 4 - Children's Interests in Division of Property on Relationship Breakdown

  • from PART I - WHO SHOULD BE COVERED BY A PROPERTY SHARING REGIME?
    • By Nicola Peart, Professor of Law, University of Otago, Dunedin, New Zealand, Mark Henaghan, Professor of Law, University of Otago, Dunedin, New Zealand
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Book:
    Law and Policy in Modern Family Finance
    Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017, pp 65-94

  • Summary

    INTRODUCTION

    The breakdown of a marriage, civil union, or de facto relationship inevitably affects children of the relationship, particularly minor and dependent children. It disrupts their home and family life. How their parents divide their relationship property is likely to have a direct impact on their lives. They may have to move house, leave their neighbourhood and friends, change schools, and they may experience a financial setback. The question this chapter addresses is whether the interests of children should be taken into account in the division of property between their parents and, if so, how those interests should be accommodated. This chapter is concerned only with relationships ending during the joint lives of the parties. The property consequences of relationships ending on death of a spouse or partner are dealt with elsewhere.

    In England and Wales, the welfare of any minor children of the marriage is the first consideration when courts exercise their discretion under the Matrimonial Causes Act 1973 (Eng & W) to adjust property between former spouses on divorce. Australia's Family Law Act 1975 (Cth) also has a discretionary regime in which the interests of children are a mandatory consideration. When exercising their discretion under these Acts, the courts in both jurisdictions consider the needs of the family as a whole, with the aim of achieving a fair or just outcome for the parties. Furthermore, these Acts deal not only with property division, but also with spousal maintenance and child support, as well as care of the children after divorce. Covering all these issues in one statute facilitates a holistic approach to the consequences of marital breakdown.

    New Zealand differs from England and Wales, and Australia by having separate statutes for property division, spousal maintenance, child support, and care of the children. The Property (Relationships) Act 1976 (NZ) deals only with property division. The regime that this Act establishes is similar to a system known in the civil law jurisdictions as a deferred community of acquests.

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