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Published: 24 May, 2013
Pages: 40

Introduction

When dealing with relationship property disputes on separation, the focus naturally is on the property rights of the spouses or partners. As s 1C of the Property (Relationships) Act 1976 explains:

This Act is mainly about how the property of married couples and civil union couples and couples who have lived in a de facto relationship is to be divided up when they separate or one of them dies.

The use of the word “mainly” in this section is the first indication that the Act is not solely concerned with the property rights of spouses and partners. The interests of children of the relationship, in particular, are relevant and must be taken into account. These interests are of such significance that they feature in the purpose section of the Act. Section 1M is worth citing in full:

The purpose of this Act is-
Section 26(1) gives explicit effect to the Act’s purpose in relation to children by directing the court to have regard to the interests of any minor or dependent children of the relationship in any proceedings under the Act. So, while the main purpose of the Act is to divide the relationship property of the spouses or partners, a just division must take account of the interests of minor or dependent children of the relationship. 1Despite this very clear direction, children’s interests have not played a prominent role in relationship property proceedings. This was also the conclusion reached by Judge Anna Skellern in her dissertation on “Children and the Property (Relationships) Act 1976” completed in 2012 for her LLM degree from Victoria University of Wellington.

Despite New Zealand’s ratification of the United Nations Convention on the Rights of the Child in 1993, the courts have been reluctant to depart from the statutory rights and entitlements of the parties to the relationship in the interests of the children. Their focus has remained on the rights of spouses and partners. To the extent that children’s needs and interests needed protection, the courts have tried to accommodate them without depriving the parties of their property entitlements. The scales of justice are tipped firmly in favour of spouses and partners in relationship property proceedings. In view of the terms of the Act and the way they have been applied, it is no surprise that Judge Skellern concluded that New Zealand is in breach of its obligations under the United Nations Convention on the Rights of the Child. She recommends reforming the Act to better balance the interests of children and the adult parties in the relationship.

Even without such reform, there is scope within the Act to take better account of children’s interests. The Act’s purpose in s 1M(c) and the direction in s 26(1) are not confined to specific provisions within the Act. Children’s interests must be considered whenever relationship property matters are addressed. They can affect the construction of provisions, the application of rules and the exercise of discretion. When finances are tight and there are limited assets available for division, the interests of children could and should assume a more prominent role than they would if there were no financial constraints.
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_{*  I am grateful to my research assistant, James Watson, a senior BA LLB(Hons) student for compiling statistics on ss 26 and 26A Property (Relationships) Act 1976.
[1]     Babylon v Babylon (2009) 27 FRNZ 622. See further below where s 26 is more fully discussed.}