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Upton-on-line November 3rd

The Fearless Fourth Estate

It is fascinating that last week’s speech about the C grade contribution of the media to our national life has not, to upton-on-line’s knowledge, received a shred of coverage (save passing reference in Frank Haden’s Sunday column). Upton-on-line had vacillated over whether to predict this in advance but decided that it was best not to extend a challenge that would be accepted so he bit his tongue. But we can now say what we knew a week ago – that there was never a snowball’s chance in hell of it seeing the light of day.

One further gripe

So upton-on-line will just add one further gripe that space precluded last week concerning Letters to the Editor. Why is it that so many editors wave through garbled nonsense into their letters columns. I’ve raised this with one or two over the years and the answer is always the same – it’s about giving people a ‘say’. There’s no attempt to discriminate because as long as everyone can have their say, that’s fair enough. In other words, no view is better than any other view. The letters column is a good way of maintaining grass roots reader engagement. Views that even the newspapers couldn’t bring themselves to print find their way in as expressions of real kerbside authenticity.

The root of the problem is the insistence by most papers that letters are short – 150-200 words maximum. This is to allow for more letters based, no doubt, on the principle that the publication of more views regardless of their banality is to be preferred to fewer ‘voices’. We couldn’t possibly be elitist could we?

Again, the business papers are the honourable exceptions – NBR and The Independent are open to the view that some issues require a more complex treatment than can be fitted on the back of an airline ticket – and that some views constitute part of a serious debate, and others don’t. That tends to be taken for granted in other countries with a better developed sense of public debate.

Property Relations

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?)

Why?

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; and
(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.


Consulting the Sibyl

Upton-on-line’s classical adviser offered the view that the Minister’s calm, oracular delivery in the face of legal doomsayers, perturbating Family Court Judges and the incorrigibly conservative Tony Ryall, had truly sibylline qualities. Somewhat at a loss as a result of his defective classical education (Latin dropped liked a hot brick after a near squeak with UE accrediting exams in the 6th form), upton-on-line consulted his trusty 11th edition Encyclopaedia Britannica and discovered that it was a more delicious observation than he imagined.

Apparently, the Sibyl of Cumae sold her oracular works to Tarquin who had them watched over by 10 custodians. Whenever the Roman Senate felt in need of a little insight, it commanded the custodians to consult the Sibylline books “in order to discover, not exact predictions of definite future events, but the religious observances necessary to avert extraordinary calamities.” In the Minister’s many and learned writings there will surely be many oracular insights to aid us – and the judges – as we summon up a prescience and foresight that has to date eluded us. But when was reconstructing the universe ever a simple task?

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