Lawyers and judge call for Family Court and property law reforms

Lawyers and lovers are calling for reform to relationship property laws and better resourcing of the Family Court
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Lawyers and lovers are calling for reform to relationship property laws and better resourcing of the Family Court

A judge is calling for better resources for the Family Court, after a couple's fight over "modest" property lasted twice as long as their marriage.

In a December judgment headed "The system fails", Justice Paul Heath said the case's "disastrous consequences" showed it was time to "reflect on whether it is practicable for that court to do everything that Parliament has entrusted to it with its present resources".

The comments come as the Law Commission reviews New Zealand's 41-year-old relationship property laws, and commentators and those affected call for reform.

Judge Paul Heath headed his judgment "The system fails".
JEFF BRASS/ FAIRFAX NZ

Judge Paul Heath headed his judgment "The system fails".

Heath said the case, called Brown v Sinclair, was a "perfect storm". It involved a short marriage, in which the splitting of the couple's modest property was "infected" and delayed by both partners filing for protection orders, one being charged with making a false domestic violence complaint, and one partner being unfairly prevented from participating in a relationship property hearing.

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While the initial issues were straightforward and should have been easily resolved, the case took six years – more than double the duration of the marriage.

Heath said the Family Court had a particularly difficult job, with people often representing themselves and emotions running high.

"Two people are hurting from the breakup of a relationship, and all too often one is intent on causing financial or psychological harm to the other."

Leading lawyers are also calling for reform of the laws regulating how property is split when relationships implode.

Otago University professor and family law expert Mark Henaghan said the law needed to be clearer to help people settle out of court, rather than starting the "runaway train" of expensive legal stoushes.

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"It's so bloody pointless, when you've got kids and other people to give the money to."

He advocated formulas to measure the economic disparity caused by one partner staying home to look after children, and to value property.

An artist forced to pay his partner of four years hundreds of thousands of dollars "for the privilege of keeping my own art", called for a sliding scale of property division.

Instead of the family home and its contents being split 50/50 after three years and one week, the percentage split could increase to equal shares over time, he suggested. "Nothing about this felt fair and reasonable to me."

Leading divorce lawyer Lady Deborah Chambers, QC, called for reforms to the "mess" of rules regulating property division when one partner dies, which she said was destroying families.

She and husband Sir Robert Chambers, a Supreme Court judge, had a detailed property agreement with equal provisions for their blended family of four children. However, when Sir Robert died, his son David took Deborah to court.

There was something seriously wrong with the law when a QC and a Supreme Court judge drafted a gold-standard agreement and still ended up in court, she said.

"It costs a fortune, it destroys family harmony. It has been an absolutely tragic experience for me. I had just lost the man I loved, and then this.

"It brought me to my knees. No-one else should have to go through what I went through."

Chief District Court Judge Jan-Marie Doogue said no government had unlimited funds and court priorities were constantly reassessed. For example, Family Court resources had to be weighed against the need to reduce delays in District Court jury trials. 

"We can't do everything tomorrow."

Some people had unrealistic expectations of the Family Court, expecting it to resolve psychological issues and using it to punish their partner, Doogue said. However, while some Family Court property cases would be better resolved elsewhere, it was important for complex, precedent-setting cases to be heard in public so people knew their rights and responsibilities.

 - Stuff

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