This year marks the Act\u2019s 50th anniversary. A national conference in Parliament\u2019s Grand Hall on July 3 will reflect on its legacy. <\/p>\n
There is no dispute that reform is overdue: The Law Commission\u2019s 140 recommendations for a new statute still await legislative action but before we rewrite the details, we should pause and give thanks to the politicians who got the foundations of this statutory scheme basically right. That heart will remain after the Law Commission\u2019s excellent suggestions for updating the legislation are made. It is also worth reflecting on the benefits of cross-party legislation.<\/p>\n
We should be grateful to the politicians who passed this legislation in 1976.<\/p>\n
Labour\u2019s Dr Martyn Finlay QC introduced the original bill as Minister of Justice. After the election, National\u2019s David Thomson, as the new Minister of Justice, championed it through Parliament in line with his party\u2019s manifesto commitment. <\/p>\n
The Statutes Revision Committee, which included Marilyn Waring (then a young National MP), Richard Prebble (Labour), Finlay himself and others, scrutinised the detail on a largely non-partisan basis. Together, they replaced an outdated, fault-based regime with a clear, no-fault partnership model.<\/p>\n
The central scheme of the act is elegantly simple and was well ahead of its time. A relationship is a family joint venture. The fruits of that venture \u2013 the property acquired during the relationship \u2013 get shared equally after three years of living together on separation. Everything else is generally excluded from division: Property each partner owned before the relationship started, gifts or inheritances received from a third party and property acquired from those separate assets. It is designed to prevent, in most cases, arguments over contribution (who took the kids to school, who kept the household functioning and who is now keeping score) and conduct. Just clear classification, followed by equal division of the joint pot.<\/p>\n
That classification process is the act\u2019s genius. Contrast it with the regimes in Australia and England. Under Australia\u2019s Family Law Act 1975 and the discretionary system in England and Wales, the court throws every asset of both parties into one pot, no matter when or how it was acquired, and then weighs a long list of factors: Contributions, future needs, care of children, length of the relationship, earning capacity. The result is flexibility, but also real uncertainty, higher legal costs, and inconsistent outcomes. It has been described as inaccessible and difficult to discover. <\/p>\n
Every time I speak at Australian legal conferences, lawyers from across the Tasman corner me, openly envious that \u201cyour system is so much clearer and fairer in its fundamental division and classification system\u201d. They are right. Our rules-based approach tells couples from day one what belongs to the partnership and what does not. Yes, there can be complex arguments when separate property is intermingled, contributed to, or used for the family\u2019s benefit, but overall, the framework delivers predictable, just results.<\/p>\n
One situation I see repeatedly illustrates why the distinction still matters. A client comes to my chambers after living for years off family money or trust funds from their spouse\u2019s parents\u2019 wealth or assets one partner brought into the relationship. They enjoyed a high standard of living, yet neither worked in paid employment and they created no significant \u201cfruits\u201d of their own. <\/p>\n
When I explain that the property is largely separate and will not be divided equally, the shock is palpable. These people, often having led a very privileged life financially for a long time, suddenly face a future without the financial cushion they had taken for granted. The lawyer\u2019s job then is to fight for the best possible outcome to preserve dignity and the ability to rebuild a separate economic life. But the act\u2019s insistence that you share only what the relationship itself produced remains a sound principle, even when the results are difficult.<\/p>\n
The act also wisely permits couples to contract out of the default rules \u2013 commonly referred to as a \u201cprenup\u201d as a result of too much American television. They can agree on their own division of property, but only after each has received independent legal advice. That safeguard is sensible.<\/p>\n
Negotiating a contracting-out agreement with someone you are in love with, possibly living with, possibly raising children with, is never easy. Emotions run high, circumstances change and power imbalances usually exist. <\/p>\n
Trying to get agreement on what happens financially if it all unravels is about as straightforward as trying to fix the rules while the game is still being played. It is ideally best done before that three-year clock starts ticking. The courts retain the power to set aside an agreement if it would cause serious injustice. That backstop strikes the right balance between respecting adult autonomy and protecting the vulnerable. These are not like other commercial negotiations across a boardroom table with strangers, but it is with someone you are sleeping with after seeing your lawyer.<\/p>\n
Lady Deborah Chambers KC, barrister at Bankside Chambers.<\/p>\n
After 50 years, the act has worked remarkably well. It has been especially valuable for women in traditional roles who might otherwise have walked away with little after decades of unpaid domestic labour. It brought New Zealand into line with a proven international model: Deferred community of property used for decades in the Nordic countries, Germany, France, parts of Canada and nine American states.<\/p>\n
So let us be grateful. Grateful to the 1976 parliamentarians for giving us a clear, partnership-based framework instead of endless judicial discretion. Grateful that, half a century on, the act still delivers fair outcomes for the vast majority of separating couples. And grateful that, even as we prepare targeted reforms, we start from a position of legislative strength.<\/p>\n
The joint-venture model is worth protecting. It is one of the quiet successes of our legal system and one we should celebrate this anniversary year. The politicians of 1976 got the big ideas right. Now it is up to today\u2019s lawmakers to honour that legacy.<\/p>\n