Review and consultation on relationship property law

Tue 31 Oct 2017

The Law Commission is reviewing and consulting on the Property (Relationships) Act 1976 (PRA). Public meetings are currently being held around ...

The Law Commission is reviewing and consulting on the Property (Relationships) Act 1976 (PRA). Public meetings are currently being held around the country.

The PRA governs how property is divided when couples separate or one of them dies, including married couples, civil unions and defacto relationships. The Act was amended in 2001 and 2005 to include civil unions and defacto partnerships but has not been comprehensively reviewed since it was first established.

The Law Commission website notes:

"When first enacted in 1976, the PRA challenged and helped redefine the role of women in society. When it was amended in 2001, the PRA sought fair treatment for different relationship types by extending its application to de facto relationships and same-sex relationships. The PRA has both reflected and shaped societal values in the way people enter, conduct and leave relationships.

Yet we know that New Zealand in 2017 looks very different to New Zealand in 1976, and even 2001."

For an overview of the consultation questions, see the consultation paper or consultation website. For detailed background about the review, see the Law Commission issues paper, Dividing relationship property: time for change? / Te mātatoha rawa tokorau – Kua eke te wā? (2017).

The Law Commission also published a study paper, Relationships and Families in Contemporary New Zealand: He hononga tangata, he hononga whānau i Aotearoa o nāianei (2017).

The Commission is expected to report recommendations by November 2018. The review was initiated in December 2015 by then Minister of Justice, Amy Adams.

For more information see the Law Commission newsletter article and their 4-page handout about the purpose of the review.

Update

The Law Commission has now released an issues paper outlining the preferred approach to reforms of the Property (Relationships) Act 1976. IP44 Review of the Property (Relationships) Act 1976: Preferred Approach - Te Arotake i te Property (Relationships) Act 1976: He Aronga i Mariu ai (2018) includes a number of key proposals including giving the best interests of children greater priority. The reforms outlined in the paper will be recommended to the Government in 2019, subject to additional feedback. Feedback can still be submitted up to 14 December 2018. The 250 page issues paper has a number of references to considerations of family violence.

Update

Based on feedback received during the consultation process, the Law Commission will release a Preferred Approach Paper in October 2018. It will outline the Law Commission recommendations. There will be a brief consultation on this paper. As a result, the Commission now expects to publish the Final Report in April 2019.

Update

Researchers from the University of Otago have published a report summarising a survey of public attitudes about how relationship property is divided when a couple separates.

How to give feedback

The consultation is currently open until 7 February 2018. There are a number of ways to participate in the consultation:

At a public meeting (October - December 2017)
Through the consultation website
Online or by email to pra@lawcom.govt.nz
By post to: Law Commission, PO Box 2590, Wellington 6140

Relationship of family violence (including child abuse) to the PRA

There is one question in the consultation specific to family violence: Should family violence be an exception to the general rule of equal sharing? (see question 35 and 36 in the consultation paper or see the online version). Chapter 12 of the issues paper examines the issue that family violence could be considered misconduct during the relationship when considering the division of property.

The interests of children is a major area of focus in the consultation (see questions 72-78 in the consultation paper). Chapters 27 - 29 in the issues paper examine the interests of children. While questions for this area do not specifically address child abuse or intimate partner violence, many questions could consider these.

Questions 87-102 in the consultation paper address how the PRA fits with Tikanga Māori. Specifically, question 97 asks: Should a whāngai be treated generally as a child of the relationship under the Property (Relationships) Act 1976? Or should special rules determine how whāngai should be treated according to tikanga Māori?

There are other questions where feedback could address family violence (including child abuse), including access to property before separation and occupancy of the home. The issues paper states:

"Occupation orders can also be obtained under the Domestic Violence Act 1995 when there is an urgent need to respond to family violence. While there is overlap between the PRA and the Domestic Violence Act, we think it is coherent and does not create confusion or gaps in provision." (see page 300)

This is an extensive review of the PRA. The issues paper is over 800 pages long and the more reader friendly consultation paper is over 100 pages. These are some of the key consultation areas related to family violence, but there may be others worth examining.

Related news

A new report on relationship property has just been published by Grant Thornton New Zealand and the New Zealand Law Society (Family Law Section). The report, New Zealand Relationship Property Survey 2017, summarises a survey of 369 family law practitioners. The survey asked family lawyers about issues and trends related to relationship property law and the people they advise. Some key findings include:

The most problematic issue is the non-disclosure of information (67%).
The third most common problem issue was systemic delays in the Family Court (57%). Similarly the number one area identified for reform was speedier resolution in the family court (73%).
Few practitioners said that children’s interests were of significant importance in managing relationship property cases (12%).
Domestic abuse was the number three reason identified for separation by the practitioners (33%).

For more information, see the media release.

Selected media

Splitting up hard enough without splitting income too, Newsroom, 15.11.2018

Property split costs likely exceed the value being fought over, Stuff, 02.11.2018

Relationship property changes may drag out break-ups, lawyer says, Stuff, 02.11.2018

Proposed law changes to relationship splits could reduce litigation, Radio NZ, 02.11.2018

Relationship property law 'out of date', Radio NZ, 30.10.2018

Mothers bear financial brunt of break-ups, Radio NZ, 20.04.2018

Why are so few women compensated for lost earnings after a split?, The Spinoff, 15.12.2017

Does the Property (Relationships) Act work for modern families? The Spinoff, 05.12.2017

Property division concerns, Otago Daily Times, 06.12.2017

Judges have been talking about the ‘justice gap’ crisis for years. Are we beginning to listen?, The Spinoff, 01.11.2017