Following question time today Parliament moved on to the committee stages of the Property Relations Bill. It is the government intention to proceed to move the bill through its final stages this week.
This is the Bill - promoted by Attorney General Margaret Wilson - which will effectively marry 256,000 people in de-facto relationships who have been together for more than three years. The bill also affects the way in which property is likely to be split by all other couples in the event of their marriage being dissolved (for details see background below).
When the bill last appeared before the house it passed its final conscience votes by a margin very close to a bare majority after a handful of Labour MPs voted against the vast majority of their colleagues.
As the bill is quite long, is in its committee stages (when amendments can be moved) and it is to be considered by conscience votes (for which full divisions can be required, no party votes), the opposition filibuster is likely to dig in for a very long time.
Leading the filibuster this time round is newly appointed National Justice spokesman Wayne Mapp. Much of the play on the bill so far has been made by the Opposition Leader Jenny Shipley and former Justice Spokesman Tony Ryall.
If the bill is not through tonight – which seems likely – then it will probably return to the house to be further debated and filibustered on Thursday afternoon. Tomorrow the house has a debate scheduled on the Budget Policy Statement.
For further background and analysis of the little known, but hugely important Property Relations Bill , see…
AN EXTRACT FROM UPTON ONLINE CONTAINING FURTHER BACKGROUND ON THE BILL FOLLOWS…
For one who has commenced a mental migration to the northern hemisphere, Morning Report no longer commands much mental circuitry even though it is habitually switched on while emptying the matutinal dishwasher. But the sound of Margaret Wilson on Tuesday morning expressing satisfaction that the select committee on the Property Relations Bill had provided certainty and clarity in its drafting, triggered a primordial alarm bell deep in the primitive, pre-rational department of upton-on-line's cortex. After the soothing claims the Minister made about the Employment Relations Bill, upton-on-line was immediately awash with sceptical endorphins.
An urgent appraisal of the Bill as reported back to the House by the select committee provided rational confirmation of what rank fight or flee instincts warned. It's a horror - a billowingly open-ended romp through settled law on which tens of thousands of people have relied in making their plans.
Retrospectively making de facto, de jure
For a long time, people have taken a live and let live approach to relationships. Those who married knew that they were blasting off into a totally different legal universe where strange laws of gravity applied. Those who were happy to float unencumbered (in a legal sense) didn't have to consult their lawyers. Now they will. Because the Property Relations Bill retrospectively applies the same sorts of rules on the division of property that have hitherto applied to married couples to de facto relationships. So if you decided not entangle yourself by getting married, you've just been saved from yourself by a thoughtful and progressive government. (You didn't really know your own mind did you?)
Because there are some things that matter more than the rational actions of consenting adults in private. Like equity. How about this for a whopper. Clause 1N of the Bill now states as a guiding principle -
(a) the principle that men and women have equal status and their equality should be maintained and enhanced: [u-o-l's emphasis]
It's a little hard to know how one can enhance an absolute value like equality, but it will surely give determined lawyers and progressive judges an excuse for just about any act of interpretative largesse.
The same goes for equality of contribution. Since the mid-seventies people who have married have known that their contributions would be treated as equal and property and would be divided equally. But now we are told that de facto relationships (retrospectively) are no different, one of the purposes of the Act is -
(b) to recognise the equal contribution ... of de facto partners to the de facto relationship partnership:
(Relationship partnership is the new piece of legal-speak invented to describe a relationship that wasn't a marriage but is now being turned into one but can't be called one!)
So Who's Caught
Well we can't be sure, but a wide enough class of relating partners to make it worthwhile booking in a six monthly consultation with your lawyer - a bit like a scale and polish at the dentist. You see, it's all in the hands of the courts with a little help from section 2D subsections (2) and (3):
(2) In determining whether 2 persons live together as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship:
(b) the nature and extent of common residence:
(c) whether or not a sexual relationship exists:
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
(e) the ownership, use, and acquisition of property:
(f) the degree of mutual commitment to a shared life:
(g) the care and support of children:
(h) the performance of household duties:
(i) the reputation and public aspects of the relationship.
(3) In determining whether 2 persons live together as a couple, -
(a) no finding in respect of
any of the matters stated in subsection(2), or in respect of
any combination of them, is to be regarded as necessary;
(b) a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.
There, it's easy isn't it? The only thing the Minister has omitted to do is provide a definition of a non-de jure, de facto (or, if you like a non-relating partner). This would have been a kindness so that people who didn't want to be de factos could be something else. Best to consult a lawyer to make quite sure you're being sufficiently informal, casual and uncommitted.
(Upton-on-line would recommend not doing the dishes, being selfish about access to the computer and causing randomly embarrassing failures to front at dinner invitations and end-of-year workplace functions. On second thoughts he's aware of plenty of married people who do these things ...)
But you can always contract out...
But what are we worrying about, you may say. Even if pre-existing relationships are retrospectively caught, you can contract out of them. Well that's true, as section 21 provides for just that. The only snag is that you just mightn't know your mind as well as you thought you did. And just in case you didn't, section 21J rides to the rescue (of whom upton-on-line is unsure - probably the legal profession):
"(1) Even though an agreement satisfies the requirements of section 21F, the Court may set the agreement aside if, having regard to all the circumstances, it is satisfied that giving effect to the agreement would cause serious injustice.
And the things the court would have regard to in deciding whether or not an agreement would cause serious injustice? Subsection (4) provides a list:
"(a) the provisions of the agreement:
"(b) the length of time since the agreement was made:
"(c) whether the agreement was unfair or unreasonable in the light of all the circumstances at the time it was made:
"(d) whether the agreement has become unfair or unreasonable in the light of any changes in circumstances since it was made (whether or not those changes were foreseen by the parties):
"(e) the fact that the parties wished to achieve certainty as to the status, ownership, and division of property by entering into the agreement:
"(f) any other matters that the Court considers relevant.
We know readers will breathe a sigh of relief to see that the wish of the parties for certainty makes it into the court's considerations. But don't get over-excited because remember, that over-arching guiding principle is "maintaining and enhancing equality". Who knows what exhilarating convictions will overwhelm the boring old desire for certainty?
After all, you could argue that the progressive slant of the legislation is to remove the ability of people to use power, property and the law to stand in the way of equality (just like the way people used to use the Employment Contracts Act to stand in the way of good faith bargaining).
Oh - and one other thing. Just before you rush to your lawyer to get all those understandings about no strings being attached down in writing, make sure your relating partner is of the same mind. Because if he or she isn't, they won't be signing anything. Any lawyer looking at things from the point of view of a party who is a potential windfall beneficiary of this legislation would have to advise keeping the top on the ink bottle. Why sign away that which the Minister bestoweth?
Don't blame us
For those who don't share the prophetic powers apparently possessed by judges and who can't abide the thought of having to stalk off to their lawyers again, please direct your fury at the appropriate people. At an earlier stage in the Bill's gestation, Stephen Franks gave MPs the chance to insert an opt-in approach in place of the retrospective, legal-fee-incurring opt-out approach. Only 17 brave souls went into the Ayes lobby. Here they are:
Awatere Huata (P), Carter J, Creech, Eckhoff, Franks, Herlihy, Hide (P), Hutchison (P), Jennings, Neeson, Newman (P), Prebble (P), Shirley (P), Simich, Upton, Webster (P), Young.
Retrospective and prospective as well
As if it's not enough to re-make everyone's plans for them by statute, the Bill also asks the Courts to have a shot at prospective crystal ball gazing as well. Where once a 50/50 split of property was the well-understood rule, the courts are now being invited to vary this. Here is section 15:
(1) This section applies if, on the division of
relationship property, the Court is satisfied that, after
the marriage or de facto relationship ends, the income and
living standards of 1 spouse or de facto partner (party B)
are likely to be significantly higher than the other spouse
or de facto partner (party A) because of the effects of the
division of functions within the marriage or de facto
relationship while the parties were living together.
(2) In determining whether or not to make an order under this section, the Court may have regard to -
(a) the likely earning capacity of each spouse or de facto partner:
(b) the responsibilities of each spouse or de facto partner for the ongoing daily care of any minor or dependent children of the marriage or, as the case requires, any minor or dependent children of the de facto relationship:
(c) any relevant circumstances.
(3) If this section applies, the Court, if it considers it just, may, for the purposes of compensating party A, -
(a) order party B to pay party A a sum out of party B's relationship property:
(b) order party B to transfer to party A any other property out of party B's relationship property.
Section 15A makes similar provision where a spouse or de facto partner has contributed to an increase in the value of separate (non-relationship) property.
So there you have it. Depending on how 'significant' the gap in future living standards and how 'likely' it is that party B will be rolling in moolah, party A could be in clover. It will of course take a court's wisdom to sort this one out. But what lawyer wouldn't counsel a client to have a try - especially when the Act is all about enhancing equality at every opportunity.
There's a wee fly in the ointment. Currently, 90% of matrimonial property disputes are settled without recourse to the courts. The select committee heard evidence that the number of people feeling the need to test these new provisions could be as high as 80%. But it's all in a good cause: asking judges to see into the future - and granting them a wide discretion - will spawn a fresh legal bonfire. So if nothing else it will be a boon to the legal industry.