Trends In New Zealand Family Law
Margaret Wilson Speech
Trends in family law in general
Family law reflects a set of values that have evolved over time about the role of the family, relationships and the care of children.
In recent years changes in the composition of the family unit, an increased focus on the rights of children, and an appreciation of the need to recognise cultural differences has prompted a re-examination of the values underlying particular rules and principles.
Tonight I will discuss three initiatives by the government which will contribute to the development of fair and modern law in the area of family relationships.
In one case, a review by a select committee is proposed.
In another, a discussion paper has been released.
And in the third, a select committee is working hard on the basis of many, and often contradictory submissions.
This illustrates the main thing about the government's approach: the approach itself.
This government knows there are serious problems in the law relating to families.
We know that change in many areas is long overdue. For example, matrimonial property law and guardianship law are over 30 years old.
But we also know that ours is a society founded on the family in the widest sense of the word.
Because families are the basic foundation of our society we care about them deeply even when they are being discussed as a matter of policy, or theory.
And we often care even more deeply about the children who are the focus of so many families. After all children make up 20 percent of our population but a hundred percent of our future.
Policies which are perceived as harming, or not helping, children produce reactions which must be based on our natural instincts to protect our young.
And of course many people who enter the debate about family law, and appropriate policies for the rearing of children, enter the debate because of their own specific experiences.
This colours their approach, in many cases, to the whole area.
I have recently introduced and seen through parliament an excellent new law based on the fact that employment relationships are human relationships, and not contracts, and for this reason should be based on good faith, mutual trust and understanding.
But that legislation recognises that there are times when the parties to a human relationship need help in resolving differences.
And it recognises that when even that fails other remedies can be sought.
There are close and obvious parallels in family law.
It's all about being human, and being human together.
So let's look at the specifics of the government's approaches to family law
For some time there has been pressure for a review of the Adoption Act 1955.
The Act has not been subject to significant amendment since it was passed 40 years ago.
Since the passage of the Act changes in social values and attitudes have significantly changed the face of adoption.
The secrecy which traditionally surrounded adoptions has been replaced with more openness.
The numbers of children being placed for adoption has declined markedly with the majority of adoptions now comprising step-parent or relative adoptions rather than adoptions by persons not known to the child.
The current legislation needs updating
to take account of changes in attitudes and
practices in relation to adoption,
to reflect changes that have been made in other more recent family law legislation, and
to take account of international developments affecting children and families such as New Zealand’s ratification of the United Nations Convention on the Rights of the Child.
In 1998, the former Minister of Justice provided terms of reference to the Law Commission for reviewing the Adoption Act.
The terms of reference required the Law Commission to
review the legal framework for adoption in New Zealand as set out in the Adoption Act 1955 and the Adult Adoption Information Act 1985 and
to recommend whether and how the framework should be modified to better address contemporary social needs.
The Law Commission is expected to publish its report at the end of September.
The terms of reference for the Law Commission review covered a range of issues relating to adoption law including:
who may be adopted;
who should be permitted to adopt,
whether special recognition should be given to Maori customary adoptions or any other culturally different adoption practices.
The government has proposed to Parliament that the Law Commission report form the primary focus of a Select Committee review of adoption.
The Select Committee process will ensure that any recommendations for change arising from the Law Commission’s review will be fully examined before the Government makes final policy decisions.
It will also allow the community to express a view on any proposals for future adoption laws, by way of oral and written submissions to the Select Committee.
The terms of reference for the review would require the Select Committee
to inquire into New Zealand’s adoption laws and
to consider what changes should be considered to better address contemporary social needs and improve the operation of those laws.
The Select Committee would also need to have regard to changes in attitude towards adoption, including
an increased focus on children’s interests;
the unique character of New Zealand society, including Maori and other cultural values and needs; and
whether any other changes to the current law are desirable in the light of issues arising from past adoption practices.
The Select Committee will also review some provisions of the Adoption (Intercountry) Act 1997.
The Government is currently reviewing the legal framework for guardianship, custody and access.
The first step in the review is a public discussion paper entitled Responsibilities for Children Especially When Parents Part that was released for public comment last month.
The review of the Guardianship Act 1968 will address questions of the rights and responsibilities of parents in the care, welfare and development of their children in situations where issues of guardianship, custody and access arise.
New Zealand has not had a review of the laws governing guardianship, custody and access for thirty years.
During that time there have been significant changes in the structures of families, patterns of family life, and societal values regarding family relationships, for example, the increase in single parent and reconstituted families.
The current legal framework also has little recognition of diverse forms of families, or of the role played by wider family or whanau members in the lives of children.
This issue is of particular importance to Maori and Pacific cultural values and approaches, and impacts on the interests of Maori and Pacific children.
Submissions from the public have been called for and close at the end of November.
This discussion paper marks the first step in a very important review of the Guardianship Act which is long overdue.
We intend to promote debate, to listen, and identify issues.
I can tell you that the government does not have a set policy designed in anticipation of the results of the discussion and consultation.
The Ministry of Justice will analyse and summarise submissions on this discussion document and identify issues.
On the basis of the identification of those issues we can assess our present practices and policies and look at what new policy might be needed.
Then, assuming legislation is introduced, there will be a still further opportunity for submissions and consultation, including consultation with our coalition partner and other parties represented in parliament.
There is no point in closely reading the discussion paper to glean elements of an as-yet-unstated policy.
It is a discussion paper, pure and simple, which begins a long process.
Some will feel the process will take too long.
But we have lived with the present law and its inadequacies since 1968, so I believe the democratic process of consultation will not be disproportionate in its duration.
The government is, however, concerned to ensure that legislation reflect the centrality of the interests of the child in matters of guardianship.
We intend, also, to support parents in continuing to be loving and supportive parents after separation.
As I mentioned earlier the government has established employment relations as human relationships and not as property relationships.
A similar approach will be taken towards guardianship.
The language of the present law is couched in terms more appropriate to property – words such as "guardianship" itself, "custody" and "access" have overseas been replaced by words such as "parental responsibility" "residence" and "parenting plans".
This is but one issue among those raised in the more than 40 questions in the discussion paper.
The paper clearly describes the policy framework, the present law and key issues.
I know there will be a wide range of views on those issues and look forward to seeing what people have to say after submissions close at the end of November.
Property (Relationships) Bill
The Government is also proposing some changes to the law relating to matrimonial property. The Matrimonial Property Act was passed in 1976. Since then New Zealand society has changed significantly. More and more people are choosing to live in a range of relationships. For example there are 236,000 defacto relationships in New Zealand. It is important that the law provide fair and accessible legal remedies for all relationships upon their breakdown.
As the first step in this process the government has drafted a Supplementary Order Paper which if supported by parliament will supersede earlier Bills – the Matrimonial Property Amendment Bill and the De Facto Relationships (Property) Bill which were introduced in 1998.
The Supplementary Order Paper will amend the Matrimonial Property Amendment Bill.
Why are we changing the name from Matrimonial Property to Property (Relationships) Bill?
The change in name signals a new emphasis on PROPERTY as the main focus of the new legislation which is to provide protections and guidance on the fair division of property upon the breakdown of a relationship.
The SOP also extends the same property-sharing regime as applies to married couples to de facto partners (including same sex partners) who have been together for 3 years or more when they split up.
The present lack of a property-sharing regime has caused financial disadvantage for some de facto partners whose relationships have come to an end, often after considerable periods of time.
Our new legislation contains robust contracting out provisions which offer all couples the option of opting out of the sharing regime by making their own legal arrangements for what will happen to their assets if the relationship ends.
It also includes measures to address the issue of economic disadvantage suffered by the non-career partner after the break up of a relationship.
The new law will address such economic disadvantage by allowing for compensatory payments from relationship property to be made to the non-career partner in certain cases. These reforms will apply to married and de facto partners (including same sex partners).
The SOP is now being considered by the Justice and Electoral Committee. The Committee is due to report back to the House by November.
This government is prepared to legislate to remove injustice and promote fairness.
But the government wants to do so on the basis of as wide a consensus as possible. For the reasons I discussed at the beginning of this speech we know that unanimity is impossible.
But I believe we can work towards a society in which difference is acknowledged and respected.
I believe we can work towards a society in which children get the respect, understanding and protection that they deserve.
And I believe that we can have a New Zealand in which the law provides for fairness and respect for the rights of all members of all sorts of families without undermining the rights of any family, or family member.
Finally, I know that I am here with people who give voluntary and in some cases paid support to families and to individual family members seeking justice.
The environment the government hopes to create will be one in which it will be easier to support families and family members and to ease the stress and burdens associated with the conflict and the breakdown of relationships.
The aim in this, as in all our policies, economic and social, is to build a society in which families grow stronger, and family members are confident of their rights and responsibilities.
The Labour Party's policy at election time was clear.
We said this in
A child’s well-being is the touchstone of the health and strength of a society. Unfortunately, New Zealand is no longer a great place to be a child. The financial, emotional and educational impoverishment suffered by too many of our children are unjust.
Children are not just the responsibility of their parents; they are literally the future of the nation. Each of us shares the responsibility of making sure that all children have the best possible start in life.
Families don’t just mean traditional families. We will support all kinds of family formation and will ensure that policies are relevant to people’s changing circumstances and support positive outcomes.
Labour policy will stress the role of motherhood, fatherhood and co-parenting. Where a relationship has ended, both parents should be encouraged to continue playing an active role in the life of their child.
So there should be no surprise at our policies or the changes we are introducing. We have remained true to our election policies which are in large part similar to the policies of our Alliance partner.
But we will continue to understand and respect the views of those who disagree with us, and to attempt to build the widest possible support for our policies.