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Family Law

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Matrimonial Property

When married couples choose to separate, there are often disputes about the classification and division of their property. The primary piece of legislation affecting the division of the property of married couples in New Zealand is the Matrimonial Property Act 1976.

The Matrimonial Property Act divides property into two broad categories:

  • matrimonial property; and
  • separate property,

Generally the principles of the Act regarding the division of property affect only matrimonial property.

If you are involved in a marriage separation, it is important you have a very clear understanding of the different classifications of property. In a very broad sense, there are 2 broad principles:

  • firstly, items which have an intrinsic family value will essentially always be treated as matrimonial property, no matter how or when they were purchased. This applies to such things as the matrimonial home and other family chattels;
  • secondly, property which is acquired as a result of the existence of the marriage will generally be matrimonial property - and conversely therefore, any property which may have been owned before the marriage or which was acquired as a result of a gift or an inheritance will usually be separate property.

There can however be important exceptions to these principles, so it is critical that specific advice be obtained. For example, there are rules relating to what is defined as "property", provisions affecting the "matrimonial home", family chattels, property acquired before or in contemplation of marriage, and provisions affecting how such property is valued and divided.

In a broad sense the Act establishes general presumptions that:

  • the matrimonial home and family chattels will be divided equally (ie 50/50) unless the marriage is one of short duration or there are extraordinary circumstances which suggest equal sharing will not be just; and
  • all other matrimonial property will be divided equally (ie 50/50) unless there is clear evidence that one party’s contribution to the marriage partnership has significantly outweighed the other.

Under the Act, it is possible to use written agreements to record divisions of specific property which are in accordance with the principles of the Act, or alternatively to record divisions of property which avoid the usual rules. Parties to an agreement in either case however will need to seek specific legal advice to ensure the division of property is appropriately handled.

If you require more information, do not hesitate to contact:

In Dunedin:

Clair Elder Jenny Beck

In Christchurch:
Glenda Murphy

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Arranging Custody & Access

Very often these are difficult issues for both clients and family lawyers to deal with. Where there is a conflict between emotional needs and legal rights, resolution is not always easy.

Where possible, couples are encouraged to reach settlement of these arrangements on their own. More and more couples are considering joint or shared custody arrangements, which allow both parents to continue a day-to-day involvement with their children. This is not always practical however, and in some circumstances assistance must be given to negotiating even the most simple arrangements. It is obviously important that considerable care be given to the interests of the affected child or children. Indeed under the terms of the Guardianship Act, the welfare of the child must be considered as "the first and paramount consideration".

Approaches to resolving custody and access difficulties include negotiation, counselling and conciliation, and finally litigation. Matters of this nature are primarily handled in the Family Court, and it is possible for the Court to make both access and custody orders.

A number of statutory guidelines are in place which may affect how arrangements may be made including The Family Proceedings Act and the various Guardianship Amendment Acts.

If you are involved in a custody or access dispute, or have an arrangement which is being regularly broken or overruled by one party, then you need to ensure you are fully informed of your legal rights and seek help. Contact:

In Dunedin:

Clair Elder Jenny Beck

In Christchurch:
Glenda Murphy

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Protection Orders

Domestic violence is unfortunately a very real issue in our communities. Traditionally it has been treated as a private "family" matter, but since the introduction of the Domestic Protection Act in 1982 public attitudes really started to change. That Act has now been replaced with the Domestic Violence Act 1995, which offers an even more comprehensive regime for dealing with domestic violence.

Significant changes introduced by the Act include:

  • an extension of the types of relationships which can be protected under the Act;
  • a new definition of "violence" which includes psychological abuse;
  • the creation of the new "protection order", which replaces the former non-violence and non-molestation orders;
  • the impositions of a firmer requirement for counselling for abusers;
  • the provision of some safeguards for victims against public availability of information.

Applications for Protection Orders can be made with urgency or on a temporary basis, and can be made by the victim (who can be a child), and by someone else on behalf of the victim. While Protection Orders are generally of a similar type, they can be specifically tailored to suit the needs of the parties involved and can include special conditions imposed by the Court.

If you or anyone you know is in a violent relationship and needs or wants a greater degree of protection, urgent information and advice are critical.

Contact:

In Dunedin:

Clair Elder Jenny Beck

In Christchurch:
Glenda Murphy

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