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7719 results in Intersentia

Page 215 of 386

  • 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.

  • Chapter 15 - Maintenance – Time for a Clean Break?

  • from PART III - HOW SHOULD PROPERTY BE SHARED AT THE END OF A RELATIONSHIP?
    • By John Caldwell, Associate Professor of Law, University of Canterbury, Christchurch, 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 393-414

  • Summary

    In New Zealand, the relationship property and adult maintenance regimes on the breakdown of a marriage, civil union, or de facto relationship have long been dealt with under two discrete legislative regimes. Relationship property assets of the parties are divided pursuant to the detailed provisions of the Property (Relationships) Act 1976 (NZ) (‘PRA’), whereas the adult maintenance and future income needs of any one party are governed by the essentially discretionary provisions found in Part 6 of the Family Proceedings Act 1980 (NZ) (‘FPA’). While the two regimes are clearly distinct, there is nevertheless an acknowledged complementarity in their policies. After all, both share the common goal of facilitating a fair resolution of financial problems ensuing from a failed relationship, and the legislative amendments in 2001 to both the PRA and the FPA were designed to'sit alongside ‘each other.

    In 2016 the New Zealand Law Commission commenced a review of the PRA. This review provides an ideal opportunity to reflect on whether there could now be further integration of the two regimes and, indeed, whether the concept of separate adult maintenance even remains justifiable in principle at all. In particular, given the regime for property division in New Zealand encompasses compensation for relationship-derived economic disparities (though admittedly a little incongruously), it may be timely to reconsider the purpose and future of our so-called rehabilitative, needs-based maintenance. It may be time to think about fortifying the ‘clean break‘ principle.

    The clean break principle is premised on the notion that the parties will use their respective shares of the relationship property to start afresh. Its purpose is to achieve financial finality and to assist the parties to self-determine and become self-sufficient. While no overt or implicit reference to this principle can be found in any of the specific provisions of the PRA, including in sections 1M and 1N which set out the purposes and principles of the PRA, there can be no doubt that the statutory regime as a whole is firmly grounded on the philosophy that ‘there should be a clean break between the parties as soon as practicable, with each able to take up their future life independently of the other’.

  • Chapter 9 - Should Indigenous Property be Relationship Property?

  • 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 203-228

  • Summary

    INTRODUCTION

    Once, not that long ago, significant tracts of land on earth were known only to the Indigenous peoples. The expansion of the European empire into the ‘new world‘ of the old homes of Indigenous peoples in lands now known as, for example, the United States of America, Canada, Australia, and New Zealand has brought about complex legal quandaries that remain mostly unresolved despite more than 200 years of contact. The European colonialists arrogantly assumed sovereignty of the Indigenous peoples and their lands. While some of the English-styled domestic courts recognised Indigenous peoples ‘property tenure, they did so typically only on an occupancy use-rights scale, if at all. This was often justified on the premise that the local Indigenous peoples were'savage‘ or ‘barbarian‘ and certainly had no developed legal property tenure comprehensive to the Europeans. While those early cases have now been overruled, the present legal quandary remains about how best to reconcile with Indigenous peoples who mostly have had their sovereignty and property denied. Many contemporary domestic courts, domestic legislatures, and international instruments are attempting to find palatable answers. Within this context, focus is predominantly on, for instance, lands, waters, forests, fish, and coastlines. Often not in the spotlight is relationship property. Still, the domicile question of whether the very little remaining Indigenous property should be capable of being deemed relationship property raises unique issues that deserve close attention. Where one or both of the persons in a relationship are Indigenous and hold Indigenous property, should that Indigenous property remain ring-fenced as separate property or fall into the relationship sharing pool? For example, if the family home has been built on the ancestral land of the Indigenous partner, upon divorce should the non-owning partner be able to make a claim to the home? This chapter focuses on these questions as an important component of modern family finances with particular emphasis on a once colonial country: New Zealand.

Law and Policy in Modern Family Finance
  • Property Division in the 21st Century
  • Edited by Jessica Palmer, Nicola Peart, Margaret Briggs, Mark Henaghan
  • Published by:
    Intersentia
    Published online:
    29 September 2018
    Print publication:
    27 December 2017
  • Law and Policy in Modern Family Finance - Property Division in the 21st Century adopts a conceptual approach to address key questions about the legal division of property when a marriage, civil union, de facto relationship, or other close personal relationship ends. These questions include: which relationships should be subject to a statutory regime; which property should be shared; whether property held on trust should be included; how property should be shared; how economic disparity caused by the division of functions within the relationship should be addressed, if at all; whether, and if so to what extent, the interests of children of the relationship should be considered; whether parties should be allowed to contract out of a statutory regime and, if so, whether such contracts should be binding; and whether death should be treated in the same way as relationship break-down.The authors use New Zealand's current legislative framework as a basis for critical analysis and reflection. Despite New Zealand's Property (Relationships) Act 1976 being hailed as socially progressive legislation when it was enacted, there is concern in New Zealand that its property sharing regime no longer meets society's needs and expectations. However, issues of fairness, equality, and modern complexities in the division of relationship property are not unique to New Zealand. Other jurisdictions are facing similar problems, including Australia, England and some continental European countries.The inclusion of internationally recognised relationship property experts from England, Australia and Germany ensures the utility of the book for international audiences, making it of interest to law reformers, academics, the judiciary, the legal profession, and law students everywhere in the world.

  • Chapter 3 - Which Relationships Should be Included in a Property Sharing Scheme?

  • from 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 37-64

  • Summary

    INTRODUCTION

    It is common knowledge that many Western jurisdictions have undergone rapid social change since the 1970s, not least in the context of domestic relationships. Declining marriage rates, high divorce rates, more people living together outside marriage, more single parent families, more childless couples, and more blended families are just some of the influences that have weakened the dominance of the traditional nuclear family.

    States have responded in a variety of ways to the shift ing demographic trends in their populations, applying different inclusion and exclusion criteria to the types of domestic relationships that are subject to their family property laws. Some jurisdictions continue to regulate the property affairs only of those couples that formally marry, although an increasing number now extend the notion of the ‘formal relationship‘ to registered civil partnership as well as marriage. Other jurisdictions take a more interventionist approach by recognising unregistered cohabitants whose informal relationships function in a ‘marriage-like‘ way, and a few jurisdictions have moved beyond the paradigm of the intimate dyadic relationship by recognising certain platonic domestic relationships such as those between family members, companions, or home sharers.

    There are also key jurisdictional differences regarding the types of property arrangements that should apply, involving important questions about the sorts of property that should be subject to sharing between partners and how that property should be shared. These matters are, of necessity, connected to the question of what types of domestic relationships should be recognised, resulting in a complex three-dimensional pattern of variables across different legal systems.

    This chapter considers two different methods used to identify the relationships that qualify for relationship property sharing – the ‘formal‘ approach premised on relationship registration, and the ‘functional‘ approach based on how the couple's relationship operates in practical terms. Drawing on the laws in countries including England, Australia, and New Zealand, this chapter suggests that neither approach is ideal – the formal approach no longer accurately reflects modern social trends, excludes too many couples from property sharing, and routinely disadvantages the more financially vulnerable party; the more inclusive functional approach is also open to criticism on grounds of uncertainty because it is not always clear whether a couple is in the sort of informal relationship that justifies property sharing.

  • Chapter 6 - A Lament for ‘Testator's Family Maintenance’ – A Good Idea Gone Wrong? Australian Reflections

  • from PART I - WHO SHOULD BE COVERED BY A PROPERTY SHARING REGIME?
    • By Rosalind Croucher, Emeritus Professor, Macquarie University, and President, Australian Human Rights Commission, Sydney, Australia
  • 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 125-148

  • Summary

    ’ The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.’

    THE POST-MORTEM QUESTION

    The Property (Relationships) Act 1976 (NZ) (‘ PRA ‘) is principally concerned with property resolution between couples during their lifetimes. But there is also an aspect that is post-mortem: on the premise that a person, especially a woman, should be no worse offon death than on divorce. It is here that my work comes in. A large part of my research and writing has concerned what was first called ‘Testator's Family Maintenance ‘, after the New Zealand statute of 1900 that brought this legislative genre into being. Such legislation was to be a counterweight to the freedom allowed to testators who could, in theory, leave their property to whomever they liked and, in practice, exclude widows and children. The Testator's Family Maintenance Act 1900 (NZ) enabled a court to override a will, in limited circumstances, in favour of the applicant. In this respect it represented a significant shift in the nineteenth-century laws of inheritance. This legislation is now variously known as ‘family provision‘ or ‘family protection‘ laws. The latest New Zealand iteration is the Family Protection Act 1955 (NZ).

    This chapter complements the other chapters, which have focused on the lifetime dynamics and operation of the PRA, in providing insights into legislative interventions on death in favour of certain family members. It also provides some reflections from experiences in Australia.

  • Questionnaire

  • Jens M. Scherpe, Andy Hayward
  • Book:
    The Future of Registered Partnerships
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    18 December 2017, pp 11-16

  • Summary

    The aim of this questionnaire is to ensure that the same areas and questions are covered in each National Report for this project. Naturally, there will be instances where some points are not relevant for your jurisdiction – that in itself can be insightful from a comparative law perspective, so please include that information. In other cases, there will be additional relevant information that was not asked for but which of course should also be included.

    This questionnaire offers a guideline and should not be viewed as a straitjacket into which the information must fit. However, authors should keep to the Roman and Arabic numerals. Each National Report should be self-contained and readable and, by roughly following the same structure, facilitate comparison. The key driving force behind using the questionnaire is to get a full sense of the legal, social and cultural context underpinning the legal developments in each of these jurisdictions. Therefore, the historical background as well as parliamentary and public debates that led to the introduction, reform or abolition of registered partnership legislation are essential; it is exactly this invaluable context or ‘insider knowledge’ (only really accessible to experts situated within a jurisdiction) that the National Reports should depict. In addition, statistical data on the uptake of registered partnerships would be extremely helpful, particularly data on the uptake in comparison to marriage. Individual comment and critique of the developments and debates, of course, is most welcome.

    HISTORY AND BACKGROUND

  • Basic structures of the law on adult relationships Please describe the basic structures of the law governing (or having governed, where regimes were abolished) adult relationships, i.e. marriage, registered partnership and cohabitation/de facto relationships.

  • Motives for introduction of registered partnership Where did the initiative to introduce registered partnerships come from? Was it purely a parliamentary one or were specific interest groups involved? Did human rights arguments/international treaty obligations play a significant role?

  • Proponents and opponents Was the introduction of the registered partnership scheme controversial? If so, who were the main opponents and proponents – and what were their arguments? What was the view of the general public?

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