Response to Matrimonial Property Amendment Bill
FROM THE FAMILY LAW SECTION
of the New Zealand Law Society
Response to Matrimonial Property Amendment Bill & SOP 25
Family lawyers say that model
agreements for contracting out of the new Matrimonial
Property legislation will mean fewer safeguards for the
public, and ultimately an increase in litigation and costs.
They are also concerned that provisions designed to redress economic disparity between separating couples could create uncertainty and they would like to see the distinction between core property (the matrimonial home and chattels) and other property retained so that justice can be achieved in particular cases.
These concerns have been raised in a statement released by the New Zealand Law Society’s Family Law Section, which represents family lawyers in New Zealand.
“Although presented as a cost-saving step, model agreements for contracting out of the legislation are likely to result in less protection for the public, particularly the vulnerable and low paid,” said the section’s spokesperson on matrimonial property, Mary O’Dwyer.
“Currently, anyone making an agreement about matrimonial property must have independent legal advice about the agreement’s implications before signing it. And lawyers are obliged to ensure that there is full disclosure of assets and debts and fair valuation of the property involved.
“With model agreements, however, there is no guarantee that there will be an obligation to fully disclose assets and to ensure that the agreement carefully matches the individual circumstances of the people involved. This means people entering into these agreements will have less protection and when such agreements prove to be seriously unjust, we will have more litigation and costs.
“We are opposed to less protection for people. Entering into property agreements is an extremely important financial step made at emotionally vulnerable times. People need careful, thorough and sound legal advice. No agreement should be able to be made without proper explanation by a lawyer.
“The detail for these proposals is to be in regulations rather than the primary legislation but we would like to see that detail made public now so it can be fully debated,” Mary O’Dwyer said.
Other areas of concern are:
the new test of ‘seriously unjust’ to set aside agreements, which will create more litigation. The current well understood test of ‘unfair and unjust’ is being abandoned and courts will have to start afresh;
the potential uncertainty created by provisions for lump sum or property transfer orders to redress economic disparity; and
the loss of the current distinction between core property (house and chattels) and other property – a distinction that has helped achieve justice in particular cases.
“These areas have the potential to result in increased litigation for separating couples and therefore higher costs,” Mary O’Dwyer said.
The section supports certain changes made by the Select Committee, including:
a clear and detailed definition of ‘de facto relationship’;
retention of the terms ‘husband’, ‘wife’, ‘spouse’ and ‘marriage’ to reflect the status of married couples; and
provision of statements of purpose and principles to assist in the interpretation of the legislation.
The section also supports a widespread public education campaign about the new legislation which it says should take place early in 2001 if the bill is passed this year.