In 2023, I moved to England from New Zealand and am practising family law as a Registered Foreign Lawyer (New Zealand Qualified). This article sets out my observations so far, between the family law systems in New Zealand and England/Wales.
As New Zealand was colonised by Britain, it is no surprise that New Zealand inherited the English common law tradition and constitutional framework. However, as England/Wales and NZ evolved as two separate countries, the legal systems also developed in different directions in order to keep up with societal needs. In this article I provide a general overview of family law in New Zealand and England/Wales and observe the differences, with a specific focus on matrimonial property.
The Law
The Matrimonial Causes Act 1973 governs the division of “matrimonial property” in England/Wales. New Zealand is governed by the Property (Relationships) Act 1976. Matrimonial property in New Zealand is called “relationship property”. The legislation in New Zealand includes marriages, civil union partnerships and unmarried couples, who are referred to as being in ‘de facto’ relationships. De facto is the Latin phrase for “from the fact”, meaning if you are in a de facto relationship, you are considered to be married by fact.
Who does the law apply to?
The Matrimonial Causes Act strictly applies to married couples only which therefore limits the rights and entitlements of unmarried couples on separation in England/Wales.
In contrast, unmarried couples in New Zealand are for the most part, recognised by the law in the same way as married couples. To bring a claim under the Property (Relationships) Act, the relationship needs to be considered qualifying. To determine whether a relationship is a considered qualifying, the court will consider the following relevant circumstances:
- Duration of the relationship (3 years or more)
- the nature and extent of common residence
- whether or not a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
- the ownership, use, and acquisition of property
- the degree of mutual commitment to a shared life
- the care and support of children
- the performance of household duties; and
- the reputation and public aspects of the relationship.
If you are an unmarried couple in New Zealand and one party solely funds the purchase of the home and their name is on the legal title, if you have been living together for three years or more, the home is equally divided on separation. Therefore, agreements known as ‘contracting out agreements’ are very common in New Zealand, which are often entered into before a couple has been cohabiting for three years.
Unfortunately for unmarried couples in England/ Wales, they are not legally recognised when it comes to shared property. There is no automatic entitlement to share in a property that has been the couple’s home if it is in one party’s sole name. The other person may be able to argue a beneficial interest only if they have contributed financially, or if they have relied upon a promise to share that property to their detriment.
Starting point
The starting point in England/Wales and New Zealand on divorce is an equal division of matrimonial property.
In England/Wales, departure from equal sharing often occurs, due to a number of different considerations (known as the section 25 criteria), but primarily due to the needs of the parties and any dependent children (the children being the court’s first consideration). The “needs trumps all” principle allows the court to depart from equality to meet needs. For example, to provide appropriate housing for a spouse who has a low earning capacity and the main care of the children of the family may demand a larger share of the matrimonial “pot”. The outcome will depend on the facts of the case, and so it is very hard to determine the outcome of any one case, as every case is different.
Exceptions to equal sharing in New Zealand
There are also exceptions to equal sharing in New Zealand, as it’s recognised that equal sharing does not always equate to fairness.
One of the exemptions to equal sharing in New Zealand is where there are “extraordinary circumstances” present that make equal division of relationship property repugnant to justice. Property may then be shared in accordance with the contribution of each party to the relationship. Unequal sharing claims are rarely successful as the threshold is a high bar to meet. The circumstances need to be considered extreme for example:
- Injection of a large amount of separate property into the relationship shortly before separation; and
- A gross disparity in financial and non-financial contributions to the relationship.
A further departure from equal sharing includes the ability to make a claim for economic disparity. An economic disparity claim allows for one party to be compensated if the income and living standards of the other party are likely to be significantly higher due to the ‘division of functions’ within the relationship. This is typically the situation where there is the breadwinner has been able to advance their career and earning capacity, while the other party has sacrificed their career to look after the children and home. The rationale for an economic disparity claim is that although the disadvantaged party may have a half share of assets, they may not have the ability to earn a sufficient income post separation. Since 2017, there has been a rise in economic disparity cases due to a Supreme Court ruling. The amount of compensation is determined on a case-by-case basis.
Recognising the end of a relationship in New Zealand
In New Zealand, when parties have agreed to the division of relationship property, they record the agreement in a separation agreement. A separation agreement is a legally binding if it meets the following requirements:
- The agreement must be in writing and signed by both parties;
- Each party must have received independent legal advice before signing the agreement;
- The signature of each party must be witnesses by a lawyer; and
- The lawyer witnesses the signature must certify that, before the party signed the agreement, they explained the effect and implications of the agreement.
In New Zealand, there is no requirement for the agreement to be made into a court order or for a Judge to have sight of the agreement. As long as the requirements above are satisfied, the agreement is binding. Once the agreement has met the criteria above, the agreement is in full and final settlement and no further claims can be sought by either party.
Divorce in New Zealand is no fault, which is also now the case in England/Wales. Divorce in New Zealand is separate to financial matters, and you can obtain a final divorce order without settling relationship property matters first. However, there are time limits. If you have applied for a divorce in New Zealand and relationship property matters are not settled, a 12-month time limit is in place for you to apply to the court if agreement cannot be reached by way of negotiation. De facto parties have three years after the date of separation to apply to the court if agreement cannot be reached.
Recognising the end of the marriage in England/Wales
To recognise that a matrimonial property settlement is legally binding in England/Wales, it must be recorded by way of a financial consent order on divorce. For the court to grant a financial consent order, the parties need to have reached the conditional order stage of the divorce proceedings, which can take some months from the issue of proceedings. Whilst deeds of separation can be entered into, these can be set aside by the court on divorce so are rarely utilised unless there is a particular reason why the couple don’t wish to get divorced. There is an inbuilt waiting period within the court process of 20 weeks from when the divorce application is filed. Therefore, it is common for parties to begin the divorce process sooner rather than later so that conditional order can be reached and the court can make a financial consent order for the parties once they have reach agreement on the terms of the order. There is no time limit on either party applying to the court to consider financial matters after a divorce is granted, and there have been high profile cases where an application has been made many years after divorce. However, if one party remarries, that will end their ability to bring a financial claim.
Final Thoughts
After practising family law in New Zealand for five years, there is plenty that New Zealand and England/Wales can learn from each other. The limited rights of unmarried couples in England came as quite a surprise. New Zealanders view England to be a progressive and modern country compared to New Zealand, however it appears that New Zealand is leading the way in respect of legal entitlements and protections for unmarried couples.
The process of exchanging disclosure is more streamlined and straightforward in England. From my perspective an exchange of Form E cuts through unnecessary correspondence and allows for parties to raise questions after the exchange is done. In New Zealand, disclosure is sought by requesting this in the initial first letter to the other side and it can take numerous correspondence back and forth between solicitors before anything is provided.
However, we are more alike than different, and it is pleasing to see how in both New Zealand and England and Wales, lawyers strive to help divorcing couples reach an amicable resolution, and consider alternative dispute resolution processes such as mediation or arbitration rather than contested court proceedings.
