Couples at war
Divorce laws causing anguish
[Legislation’s] limped on for far too long. Professor Mark Henaghan
“Broken,” “horrendous” and “brutal” is how professionals in the divorce industry describe the legal system used to resolve relationship property disputes.
They accuse the Government of being too slow to update the Property (Relationships) Act 1976, described in a 2019 Law Commission report as no longer fit for purpose.
And they say the dysfunctional system within the courts, particularly the Family Court, enables cases to drag on sometimes for years and at enormous cost. The system, and lack of penalties, meant unco-operative spouses and partners could use delaying tactics that clogged up the courts.
In its report, produced after several years of research, the commission said it wanted to “address behaviour that causes delay and increased costs”.
It recommended a new Relationship Property Act with a series of wide-reaching changes including access to trusts being used to protect joint property and assets. But the report was put on the backburner until the commission had examined the law of succession.
Critics say the delay was unnecessary and that the act should already have been reformed. The lack of action was causing ongoing anguish, emotional trauma and financial ruin for couples locked in property disputes. Auckland law professor Mark Henaghan thinks the Government has deliberately shelved the report because parts of it won’t be popular with “voters with lots of assets”.
“The law of succession is just an excuse. It’s only a small part of the Act, dealing with relationship property on death,” he said. “It’s social legislation that we should get onto quickly. It’s limped on for far too long.”
Justice Minister Kris Faafoi said the succession law review was due to be completed by the end of this year. Work on other important family law issues was under way, including reforming the adoption law and improving the family justice system to better meet the needs of tamariki and their wha¯nau, he said. “I will need to take account of these things among others when considering the Government’s next steps on the Law Commission’s reports.”
He did not say when the relationship property Act would be reformed.
Auckland public-relations consultant Sarah Sparks spent $2 million in a failed seven-year attempt to get a share of relationship property after splitting with her former propertydeveloper husband. Last year she withdrew and faces potential costs against her of $444,000.
Now an advocate for those going through complex disputes, she said the Family Court system was “broken”, forcing warring couples to endure lengthy and expensive cases, often with children caught in the middle. She knew of women who elected to stay in bad relationships for fear of being unable to endure the process of fighting for a share of relationship property.
Auckland lawyer Sheila McCabe described the court process as “horrendous” and “brutal”, and said it should be a last resort.
Lawyer Jan McCartney, QC, said both parties in complex relationship property disputes went through “deep, terribly troubling anguish”.
“It shows the Family Courts are not working if they can’t respond to that.”
The system needed to be simplified and case management improved, she said. “If I file something in the Family Court it just seems to disappear down a black hole. There is no consistency in the case management of Family Courts around Aotearoa New Zealand. Some courts are brilliantly managed.”
Lawyers and accountants representing couples in dispute say Family Court judges are skilled and hardworking but the court is governed by complex rules that slow the process. In addition they say the court’s technology is behind the times.
Acknowledging the Family Court’s issues, a spokesman for the Ministry of Justice admitted this week that the court was “heavily reliant on paper”. Sam Kunowski, general manager of courts and justice services policy, said the ministry was working on a business case to upgrade the courts’ digital case management systems, starting with the Family Court.
Faafoi said the Government was focused on improving the family law area, including reducing the delays people experienced going through the court. To help with judges’ workload the Government had allocated $15 million over five years in this year’s Budget to pay for Family Court Associates to help with administrative matters.
An additional $5.7m was allocated over five years to improve scheduling and management in the District Court.