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:
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:
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:
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:
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:
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:
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.