We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
from PART I - WHO SHOULD BE COVERED BY A PROPERTY SHARING REGIME?
Published online by Cambridge University Press: 29 September 2018
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.
To save this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.
Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
Find out more about the Kindle Personal Document Service.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.
