Miranda and Simon’s daughter, Miria, is a very fortunate young lady. Miria is about to achieve what we are told is the unachievable in Auckland – she is buying her first home. She is fortunate because Miranda and Simon are able and willing to help her make this purchase. Dipping into their own investments, Miranda and Simon are giving Miria $120,000 of the deposit she requires. She will, however, be responsible for the mortgage. Hearing this over a couple of wines one evening with Miranda, I quickly switched into lawyer mode and started raining on Miranda, Simon and Miria’s parade.
“What will happen if Miria’s boyfriend moves in?”, “Have you considered how you would feel if Miria, one day, separates from her future spouse or partner who ends up with half of the house and hence half your gift?”. My questions rolled on as the colour drained from Miranda’s face and her glass rapidly grew emptier. What started out as a genuine desire to help their daughter get ahead was fast becoming more complicated and risky.
What can you do if you want to give your child financial assistance but don’t want his or her future partner or spouse benefitting from your generosity in the event of a separation? With housing affordability being a hot issue in all the major centres, this question is increasingly coming up.
“We’ll make her do a prenuptial type agreement” was Miranda’s first thought. It’s a good idea. However, its difficult to enforce. Once the money is paid out to Miria, Miranda and Simon will be unable to require Miria and her future partner to enter into a Contracting Out Agreement. Miria may see the sense in protecting her investment from relationship property claims but, once cupid’s arrow hits her, she may be unable to imagine the relationship ever ending. Furthermore, the law may see Miria as being in a de facto relationship when she doesn’t. Perhaps Miria and her partner won’t want, or be able, to spend money on each having a lawyer to complete an agreement. Perhaps life may just be busy and Miria and her partner simply don’t get around to it. Whatever the reason, there’s a high chance an agreement won’t be entered into.
“We’ll do it in a trust” was Miranda’s next solution. The solution looked to by many is that either they form a family trust to make distributions to their children or their child forms a trust to own the home. Forming a trust, in itself, is a costly exercise and the trust will require ongoing cost and attention in order to prevent it being challenged in the future. Even if a trust is formed, this alone will not likely protect the monies or home from a future relationship property claim. Other steps, such as a loan agreement and/or a Contracting Out Agreement will still be needed. You will need more than one moat around your castle.
So what should Miranda and Simon do? The simplest and probably most cost effective thing to do is have a loan document prepared and signed. This will confirm that the money being advanced is a loan and not a gift. If Miria and a future spouse separate, the loan will be taken into account as a debt owed. The loan can provide that repayments are not required unless demand for repayment is made. On a future separation, Simon and Miranda can demand repayment to ensure half the monies don’t go off with Miria’s ex.
Got a question or concern about protecting property from relationship property claims? Give the experienced team at Family Law Results a call on +64 9 297 2010 and we will listen to your concerns and guide you to find a solution that best meets the needs of you and your family.
Rebecca was struggling – she was facing all the usual challenges of a being a first-time mother to a three months old baby. She was also contemplating separating from Alvin, her de facto partner of five years. We discussed the all too real pressures that coping with the demands of a baby can place on the relationship between its parents. We explored what, from Rebecca’s perspective, would need to change to prevent a separation and the supports that were available to her and Alvin.
Rebecca was keen to try some of the interventions we came up with that may address her concerns with her relationship and avoid a separation. However – just in case – she also wanted some picture of what may happen in terms of their property should they end up separating.
Last year, she bought the home that she and Alvin live in. Her parents generously gifted her $150,000 towards the purchase (they’d done the same for her older brother). She also used $80,000 of her own savings. She earned more than Alvin so she was also paying more towards the home’s mortgage and expenses.
Rebecca proudly told me she had safeguarded things by ensuring the home was registered in her name alone. She had also borrowed the mortgage in her name alone. Alvin’s payments to her were purely “board” for living in the home. She was feeling happy and confident that she’d set things up so that Alvin had no claim over her home and couldn’t walk away with any of her parents’ gift.
Sometimes as family lawyers we must rain on people’s parade. We can’t always tell clients what they want to hear. This was one of those times.
Despite the fact the home and mortgage were in Rebecca’s sole name, she was dismayed to learn that by law the home was relationship property. The principal family residence is given special status in law as the “family home”. Given their relationship had existed for more than three years, the law provides the home would be divided equally between her and Alvin if they separated.
Rebecca challenged me on this – What about the fact she had contributed more financially to the home and its expenses? This is a common situation where one party earns more than the other in a relationship. Unfortunately for Rebecca, it does not give rise to a legal basis for departing from equal sharing of the family home. The equal division of the family home applies irrespective of how or when the home was acquired.
Rebecca’s savings that she contributed to the purchase of the home were acquired during the relationship so these would be regarded as a contribution of relationship property to the acquisition of the home, even though they came from her income. If they had been squirrelled away by her prior to the relationship, they would be her separate property but once they were contributed to the family home with her consent, they become relationship property as part of the home.
Rebecca was beside herself but felt she had one last hope – what about her parents’ gift? I questioned her further about the intention behind her parents’ contribution to the purchase of the home. She was very clear it was a gift and that they had gifted a similar amount to her brother when he bought his home some years ago. She indicated there was never any intention of it being repaid to them. There also was no intention that they would have any interest in the home. There was no loan documentation completed. In all the documents provided to the Bank for the mortgage, the monies from her parents were declared to be a gift.
While one view could be that her parents only ever wanted Rebecca to benefit from the gift if her relationship with Alvin broke down, this hasn’t prevented the Court finding in other cases that the family home gets divided equally even when gifts have been used to purchase it.
Understandably, this was not the news Rebecca had expected. She may have grounds for an “extraordinary circumstances” claim to depart from equal sharing given the level of her contributions compared to Alvin’s but such claims are notoriously difficult to successfully mount. Even if she was successful in such a claim, she is likely to incur considerable legal costs, stress and delay in the process. Rebecca felt resigned to her only hope being that Alvin may “do the right thing” and agree to the gift from her parents being treated as her’s alone.
What could Rebecca have done to avoid this? Firstly, when she bought the home she should have been upfront with her conveyancing lawyer about her relationship with Alvin and that he would be living with her. Taking advice, and acting on that advice, at the time the home was purchased would have prevented her being left in this predicament. She could have:
(a) put the home in a family trust and coupled this with a Contracting Out Agreement to set out that any interests or property rights she may have in the trust are her separate property. This may be more than needed for Rebecca’s circumstances and having a Trust comes with ongoing costs and administration; or
(b) entered into a Contracting Out Agreement with Alvin to preserve the gift as her separate property and to set out how the home was to be treated if they separated; or
(c) had her parents own a share in the home proportionate to their contribution to its purchase. If she had done this, it would have been prudent to enter into a Property Sharing Agreement with her parents to set out the basis on which they co-owned the home and their respective obligations and rights. Depending on what she wanted to see happen to her interest in the home on separation with Alvin, a Contracting Out Agreement with Alvin may also have still been needed; or
(d) entered into a loan agreement with her parents requiring repayment of the monies they advanced so that on separation, the monies would be repaid back to her parents (who could have then advanced it to Rebecca alone again). Again, a Contracting Out Agreement with Alvin would have been prudent if Rebecca didn’t want to be in a situation where the home, after repayment of the loan to her parents, had to be shared equally with Alvin.
All was not lost for Rebecca – Contracting Out Agreements can be entered into at any time during a relationship, not just at its inception. Rebecca said Alvin had always taken the view that the monies from her parents was “hers”. Therefore, she believed that Alvin would willingly enter into a Contracting Out Agreement to confirm that the gift from her parents should be preserved as her separate property and she should receive this if they did eventually separate.
Worried about what may happen to your property if you separate? Going to gift money to your child to purchase his or her home? Looking to have your partner or spouse live in a home you are buying? Give the team at Family Law Results a call on 0064 9 297 2010 so we can help you ensure things are set up correctly in order to avoid shocks like Rebecca had!
After years of careful saving and contributing to Kiwisaver, Murdoch was excited about buying his first home. On learning that Murdoch’s partner was going to be living in the home with him, Murdoch’s conveyancing lawyer quickly sent him to see me for a Contracting Out Agreement.
Murdoch explained to me he wanted the Contracting Out Agreement to make sure that is and his partner ever split up, “the home is all mine” and that his partner did not have any claim to it. Murdoch’s rationale was straight forward enough – the relationship was only a year old, he was providing the deposit that he had saved hard for and would be liable for the mortgage. Meanwhile, his partner hadn’t been so prudent and did not have Kiwisaver nor much in the way of savings to contribute.
Contracting Out Agreements are often referred to as “pre-nuptial agreements” but, in reality, one can be entered into at any stage of a relationship. They are commonly used to preserve assets as the separate property of one spouse or the other in the event of a separation. As in Murdoch’s case, this is often in recognition of the greater financial contribution made to the acquisition of an asset by one spouse. Some parties will each bring assets of their own to their new relationship. Sometimes they have children from previous relationships that they wish to have benefit from the property they have each come into the relationship with. All are situations that can be accommodated for in a Contracting Out Agreement. We all insure our significant assets against events such as fire, natural disaster and theft. Statisically, you have more chance of experiencing a separation or divorce than those events. Think of a Contracting Out Agreement as a way of insuring your property from relationship property claims in the event of a separation.
Murdoch’s agreement was quickly sorted out with his partner. However, Murdoch was concerned at my advice that the agreement be regularly reviewed, especially when there were significant changes in their relationship or financial situation. He really didn’t want to have to spend more money on the agreement in the future. He particularly struggled with my advice that, over time, he may have to consider providing for his partner to have some interest in the home. I had to caution Murdoch that the protection the agreement afforded him could wither away over time unless it was regularly reviewed and amended to keep up with changes in his relationship.
Agreements that square away the major assets to just one spouse, leaving the other out in the cold, can be vulnerable to being set aside by a Court in the future if giving effect to the agreement would give rise to serious injustice. An agreement that is just today, could be render unjust as the relationship evolves. There is only so much crystal ball gazing into the future that we can do when we enter a Contracting Out Agreement. Agreements are particularly vulnerable when the parties to it simply place it in a top drawer to gather dust and their circumstances change over time. As time marches on, contributions (financial or non financial) by the other spouse could mean the agreement becomes unjust, particularly if children come into the picture.
This is not to say such agreements are a waste of time. It just means that, like your insurance policies and your wills, they need to be treated as a “living document” if they are to continue to be effective. You don’t just pay your insurance premiums once and forget about the policy. At various times, you will review your insurance cover, sometimes incurring higher premiums, to ensure the policy meets your needs and that you are sufficiently covered. Similarly, you need to review and update a Contracting Out Agreement regularly with the benefit of legal advice to ensure it still covers you if you ever have to bring it out of that top drawer.
Thinking of a Contracting Out Agreement? About to move in together? Been living together for a while but concerned to get your affairs in order? Got a Contracting Out Agreement but haven’t reviewed it in years? Give the experienced team at Family Law Results a call on +64 9 297 2010 and we will listen to your concerns and guide you to find a solution that best meets the needs of you and your family.
Imagine being at the airport, neck pillow, passport and tickets in hand, looking forward to your holiday overseas only to find yourself stopped from travelling for failing to pay Child Support. Media reports this week indicate this has been a reality for record numbers of Australian parents with outstanding child support debts.
Could this happen to you in New Zealand if you haven’t paid your Child Support debts before leaving the country? Yes, it can.
Inland Revenue shares information with New Zealand Customs and Internal Affairs to enable it to locate those who owe child support who are travelling. If IRD believes you are about to leave New Zealand with the intent to avoid payment of your child support debt, it can seek to have you arrested and brought before the Court. if this happens, forget about your business trip or holiday – the only place you are travelling to is straight to the cells followed by a sojourn in front of a District Court judge.
When you appear before the Court, it can order that you not leave New Zealand without the Court’s permission. You can also be ordered to surrender travel documents and/or provide security for the payment of the debt.
If you have Child Support debts, our advice is to always come to payment arrangements with Inland Revenue before it takes enforcement action, including stopping you from travelling. This will save you a lot of penalties and enable you to still enjoy your trip.
Got a Child Support issue you need legal advice about? Contact the team at Family Law Results on 0064 9 297 2010 or at lawyers@familylawresults.co.nz.
Listening today to reports of allegations that five female university students were sexually harassed while completing a summer internship at one of the country’s largest law firms, I am left with an unrelenting pit of despair in my stomach. When will things change in my profession?
Over 20 years ago I was a summer intern at a “Big 6” firm. Fortunately, I didn’t encounter sexual harassment in my time there. This is not a “Me Too” moment. However, I could well see the potential for it. What I most remember of this time in my career is the terrifying cocktail of the exhilaration of embarking on my career mixed with the daily apprehension and lack of confidence I felt as I moved within that world. Even with years of experience under our belts, many of my female contemporaries continue to carry “imposter” feelings, crises of confidence or shy from challenges they are more than capable of meeting for fear of not “being up to the task”. This is nothing new or earth shattering. Women have known, and quietly whispered, of this affliction within our tribe forever. Sheryl Sandberg got a bestseller out of it in her book, “Lean In”, helping to amplify the conversation. To think that twenty plus years later young women, likely carrying with them those same feelings I had, have been welcomed to our profession with sexual harassment is shameful.
I well remember the emotion of a fellow junior colleague confiding in me about the sexual harassment she received from her boss before she’d even got through lunch on her first day in the job. Over the years other stories emerged – the secretary who felt she had no choice but to leave her job because of the overt sexual harassment by the owner of the practice; the colleague who felt uncomfortable because of the calls and invitations she received from a senior male colleague; the colleague who was left confused and grieving after being propositioned by a married male partner who she previously considered a professional mentor; the two female junior lawyers who came into the interview room I was in at Court to quietly discuss the inappropriate comments made to them outside by a senior male colleague.
In other ways, my female peers are made to feel “less than” and undervalued while trying to simply go about their daily work: the male partner who jokes the firms’ maternity leave policy is “you get pregnant, you leave”; the client who, in explicit terms, talks to his junior female lawyer about aspects of his sex life and his anatomy (completely irrelevant to his case) yet doesn’t do the same when he is moved to a male lawyer; the junior lawyer who has a more senior male colleague make derogatory remarks about an aspect of her physical appearance during a settlement meeting. The list goes on. I well remember the male respondent who, in one of my first, nerve wracking hearings, insisted on answering my cross examination in a condescending, patronising tone while calling me “girly” and “sweetheart”. This occurred in front of a senior male lawyer and a male Judge who didn’t bat an eyelid. I have no doubt that had he made a racist comment in that Courtroom, he would have been reprimanded swiftly but his sexism went uncommented on. I was left feeling belittled and to assume it simply either wasn’t seen by these two men in power or was just viewed as the rigours of litigation. Harden up sweetie.
I am writing of only a small few of our male colleagues, not all of them. Most of my male employers and colleagues have been wonderful. I am particularly fortunate to enjoy collegial relationships with male colleagues who will be equally as appalled as I am at these stories. Most of the men in my profession conduct themselves around all their colleagues, male and female, in an entirely respectful, professional manner. Sadly, anecdotal evidence suggests the perpetrators of what can be described as (at best) clumsy and inappropriate and (at its worst) predatory or harassing behaviour towards their female colleagues are older, senior members of our profession.
Do the women of my anecdotes, all of whom are educated, strong and independent, formally complain? No. And so it goes on. A myriad of reasons stops us from complaining. The hierarchical nature of the profession and a sense of “knowing our place” against more senior colleagues. The lack of confidence we have as juniors, particularly when jobs are so rare and sought after. Not wanting to be seen as “a problem” or “a prude” or “unable to take a joke”. Sometimes, just wanting to have it be over with. Then there is the small firm isolation experienced when one is left feeling powerless as the “HR department” or manager to go to is also the owner of the firm and the perpetrator of the behaviour.
Good on these five young women for standing strong on this and complaining. Good on the Vice Chancellor of Victoria University, Grant Guilford, who on National Radio today labelled perpetrators of sexual harassment as “arseholes” and called for greater understanding within workplaces and our society of the long term harm caused by sexual harassment. Kudos to his interviewer, Kathryn Ryan, who upon hearing about initiatives being taken to “prepare” young women for entering the workplace and dealing with such situations, stated the obvious– shouldn’t young women be able to go into the workforce and simply not have to encounter such behaviour?
To my profession – as lawyers, most of us have very keen social justice radars. We are quick to jump on causes. But our own house must be tidy. We must be alert to those who subvert the respect and honour of our roles. The men in our profession need to all be the biggest advocates for their female colleagues. The women in our profession need to take a leaf from the book of those five students who have complained. We need to stand strong and not allow ourselves and each other to sit silent or merely whisper about this. We shouldn’t accept this behaviour as an inevitable rite of passage in our careers. The irony is that many of us are exceptional advocates for our clients yet not for ourselves and each other.
To those few guilty male colleagues, let me break it down for you simply–
- Interviews I heard today suggested that consumption of alcohol at workplace functions is a contributing factor to sexual harassment. Alcohol is no excuse. If having a few drinks causes you to make bad decisions, behave inappropriately and to abuse your position of trust and seniority, you have a much bigger problem. Do what you need to deal with it.
- The target of your behaviour is not amused or enamoured by it. That is no reflection on their sense of humour or their sexuality. The target of your behaviour is not a “prude”, “frigid” or “unable to take a joke”. Your behaviour isn’t a joke. Unwanted sexual attention or comments about one’s physical appearance are not a turn on.
- As a starting point – here’s a simple litmus test: if you wouldn’t say something to your male colleagues, don’t say it to your female ones. Never. Just zip it. If you wouldn’t act in a certain manner towards your male colleagues, don’t conduct yourself that way with your female ones. At the very least it is not appropriate. At its worse, it is criminal. At any level on the spectrum, it can destroy a women’s sense of security and self and can ruin careers.
- Finally, let’s be very clear – the women of my profession talk to one another. We may not be parading the red carpet dressed in black with Time’s Up badges adorned but we confide in one another about your behaviour. Yes, that’s right, we talk about you. Your reputations are muddied. We know who you are. We don’t forget. Even after 20+ years.
- Shame on you. But more shame on you if, now being aware the time for change is here, you choose not to.
Well, what a stellar guest blogger I have today!
I first met Jennifer Hetherington when we both served on a committee for the International Academy of Collaborative Professionals. When I say met, we didn’t actually meet in person for some years but rather exchanged emails and were voices across a conference call line during committee meetings. When I finally met Jennifer in person, it was like a whirlwind came through my office. What a dynamo! She practices out of Queensland where she is an award winning family law specialist, a mediator and Collaborative Professional.
Before Christmas, I blogged about the difficulties Australia’s anti-same sex marriage laws posed to those same sex couples who had married in NZ but wanted to divorce. Jennifer kindly agreed to write a guest blog from “the ground” in Australia where she writes the first same sex marriages are taking place along with the first same sex divorces.
Thanks so much Jennifer!
SAME SEX MARRIAGE LAW NOW ENABLES DIVORCE FOR COUPLES WHO MARRIED IN NZ (Jennifer Hetherington, Hetherington Family Law)
Australia’s historic same sex marriage laws has finally resolved an unexpected quandary faced by same sex couples who were legally married in New Zealand but move to Australia.
Until Australia made same sex marriage legal, same sex marriages in New Zealand were not legally recognised in Australia (see last month’s blog).
A consequence of that meant couples who married in New Zealand and made the jump across the ditch and now wanted a divorce in Australia were in a legal limbo – their marriage was not recognised in Australia and they could not get a divorce as they were no longer domiciled in New Zealand.
Everything changed on December 9 when same sex marriage became legal in Australia.
The law means same sex marriages in New Zealand, are now legally married in Australia which also clears the way for couples who seek a divorce.
Until December 9 you couldn’t divorce in Australia until our same sex marriage legislation was passed. The irony is that while you could not divorce you could do a property settlement as a de facto couple (with potential greater rights than in New Zealand!)
While Australia embraces a wave of emotion to welcome same sex marriage, the prospect of our first same sex divorce is closer than you might think. Even before the first same sex marriage took place a Perth couple had engaged lawyers and are set to become the first same sex couple in Australia to divorce under the new laws.
Australia’s marriage equality law change now brings our country into line with international thinking.
While Australians are celebrating the legalising of same sex marriage we have to acknowledge the fact that, as with many relationships, it doesn’t always work out.
It now means some of those people who flew to New Zealand to be married under their same sex marriage laws are now able to apply for same sex divorces in Australia.
You can learn more about Jennifer Hetherington or contact her at her website here. Jennifer is an award winning specialist family lawyer and mediator. Her firm, Hetherington Family Law, is based in Brisbane, Queensland, Australia. However, she grew up in the City of Sails (Auckland!) before jumping across the ditch in her teenage years and will always remain a loyal All Blacks fan.
Jennifer and thefamilylawyer.co.nz’s Selina work closely together on matters where couples have property in both Australia and New Zealand.
I first heard about Divorce Coaches while in the US several years ago but it wasn’t until 18 months ago that I met a NZ based divorce coach, Kimberlee Sweeney. Kimberlee is a pocket rocket full of great ideas, knowledge and tools to help clients navigate the separation path. Kimberlee is the person to see if you
- are contemplating separation but need support and clarity as you work through your decision;
- want assistance to communicate with your ex in a calm and open way;
- feel the need to put in place and implement a practical, step by step plan;
- want your legal fees to go further and to work optimally with your lawyer or mediator;
- want to work through the cloud of emotion you’re experiencing in order to make supported, focused and practical decisions
I love working with like minded professionals who aim to empower their clients to make child focused and life enhancing decisions for themselves and their families. Therefore, it is a huge pleasure to introduce you to Kimberlee Sweeney and have her as my guest blogger. Take it away Kimberlee…
Lawyers and Divorce Coaches: A mutually satisfying partnership (Kimberlee Sweeney, CDC Divorce Coach)
In my profession as a CDC Certified Divorce Coach, I have built a portfolio of experts to refer clients going through separation or divorce. I have spent a substantial amount of time meeting with Barristers, family lawyers, mediators, financial experts, mortgage brokers, real estate agents, counsellors and psychologists, and the like. I prefer to refer my clients to experts I have personally met and try and match my clients to those experts whom I think they will relate well to.
Working in partnership with a team of legal experts has ultimately prepared my clients for the process of the legalities of separation and divorce. In turn, my stable of legal experts also refer their clients to me, when there has been a need for additional support outside of their law office.
Divorce coaching is expanding worldwide but is a relatively new type of coaching here in New Zealand. There is a growing need for more support in this speciality area, especially with all the changes going on within our, “bursting at the seams”, courts system.
Lawyers need credible Divorce Coaches who can broker a clear pathway for them, with clients going through the crisis of a separation or divorce. A Divorce Coach can facilitate constructive communication and assist clients to settle their disputes out of court in a more collaborative fashion via their lawyers. A coach supports them in and out of meetings and mediations and prepares them both emotionally and organisationally for such meetings.
A divorce coach can assist clients to work through the emotional effects of dealing with separation and divorce, help them to think more clearly about how to move forward in the process, and focus less on reliving the past. Ultimately getting them organised and putting plans in place, systematically during each phase of separation and divorce. This is beneficial to a family lawyer, who can then work out the practical and legal aspects of separation and divorce, and allow the Divorce Coach to handle the background preparation and emotional toll of divorce.
When children are involved a Divorce Coach can assist parents with developing a ‘Parenting Plan’ that opens up the potential to, co-parent their children amicably and co-operatively, providing the children with structure and security so they can transition into a new way of living between two homes feeling supported.
Some signs that a client could be well served by a Divorce Coach include:
- They are locked into one option and refuse to consider other possible solutions
- They refuse to examine any other perspective but their own.
- They are either overly optimistic or overly pessimistic about how things will turn out for them after the settlement
- They lose sight of what is best for the children
- They are so overwhelmed they are stuck in indecision
- They have no idea how to rebuild a life on their own.
- They simply don’t know where to start and need guidance on how to make wise decisions for their future.
Coaching helps the client explore other options or shift their perspective to consider other possible solutions. It’s a flexible, goal oriented process designed to support, motivate and guide people and to help them make the best possible decisions for their future.
If you would like to learn more about me and the services I offer as a Divorce Coach feel free to scroll through my website or contact me to set up a time for a meeting.
I look after clients all over New Zealand and even have had some clients in Australia. Coaching sessions can be via skype or telephone or in my offices in St Johns, Auckland.
Kimberlee’s coaching practice, Degrees of Separation, operates out of Auckland, New Zealand but she consults via Skype and phone also. You can learn more about Kimberlee and the different services she offers, including her introductory free Discovery session, by calling her on 021 279 9407 or head over to her website www.degreesofseparation.co.nz.
Thanks Kimberlee!
Yesterday, hours after we learned Australia had voted in favour of same sex marriage, I was interviewed on Radio Live Drive about a peculiar anomaly in the law which means same sex couples who have already married in New Zealand but call Australia home have no way of obtaining a divorce.
It’s an unusual day in the office when, as a divorce lawyer, I must tell a client he or she cannot divorce. That is exactly the scenario I have found myself in on several occasions since New Zealand passed its same sex marriage legislation. New Zealand has developed a lucrative nuptials market with overseas same sex couples, many from Australia, coming to our shores to marry. Last year, 471 same sex marriages in New Zealand were between overseas residents and over 330 of those were Australians crossing the ditch to get hitched. Furthermore, some New Zealanders who enter same sex marriages here inevitably end up doing as many New Zealanders do and move to Australia to establish new lives there. For many starry-eyed newlyweds, the thought of wedded bliss turning sour is not something that is dwelled on. However, for those in same sex relationships, divorce might not be an option in the future should they not reside in New Zealand and “till death do us part” will really mean just that.
So, how is it that a same sex couple living in Australia can marry in New Zealand but not divorce? The issue arises for two reasons – the circumstances in which you can apply for a divorce in New Zealand and the lack of legal recognition of same sex marriages across the Tasman.
To apply for a dissolution of marriage (or divorce) in New Zealand, one of the married parties needs to be domiciled here. If both parties are domiciled overseas, then a dissolution cannot be sought in New Zealand even if the marriage occurred here. Domicile shouldn’t be confused with where you live at any given moment. It has a specific legal meaning but generally speaking, requires a level of intention and long term commitment to the country of domicile.
If a same sex couple cannot seek a divorce in New Zealand because they are domiciled in Australia, surely the solution is that they apply in Australia for a divorce. This is exactly what a heterosexual married couple faced with the same circumstances could do. However, not only does Australia not allow same sex marriages to occur there, it specifically outlaws the legal recognition of same sex marriages that have occurred overseas. Australia’s Marriage Act 1961 specifically states that unions solemnised in a foreign country between members of the same sex must not be recognised as a marriage in Australia. Therefore, a divorce cannot occur in Australia because the very marriage being dissolved is not legally recognised in the first place. Essentially, in the eyes of Australian law, there is no marriage to dissolve.
If you are thinking this is all rather unfair, the United Nations Human Rights Committee agrees with you. On 3 August 2017, it found that Australia’s denial of divorce to a citizen who had entered a same sex marriage in Canada was discriminatory and violated the International Covenant on Civil and Political Rights which states that “all persons should be equal before the law and are entitled without discrimination to the equal protection of the law”. The Committee found that Australia is treating overseas same sex marriages less favourably than other types of marriage. Advocates of same sex marriage in Australia have argued the decision creates an obligation on Australia to grant marriage equality as it confirms Australia has an obligation to treat same sex couples equally and give them equal protection of the law.
Some may ask why having the ability to divorce matters if the marriage is not recognised at all in law. Putting aside the significant human rights issue as confirmed by the UN Human Rights Committee, the right to divorce has practical implications. Divorcing frees you to marry another, should you choose to do so. We all live, love and occasionally make a mess of things. For heterosexual couples, they can choose to try again and remarry. By denying same sex couples the right to divorce, they essentially are denied the right to remarry after one marriage ends. Should someone simply ignore his or her earlier same sex marriage and marry again, they would be committing bigamy under New Zealand law.
If Australians do for marriage equality reform as their Prime Minister urged yesterday and simply “get on with it”, this situation will be promptly rectified. In that case, some of those couples who first rushed to New Zealand to be among the first to marry here under our same sex marriage laws may find themselves being some of the first rushing to the apply for same sex divorces in Australia. But, what will happen in the seemingly unlikely event Australia doesn’t change its law? Do we in New Zealand, having marketed ourselves as a destination for same sex couples wanting to marry, have an obligation to warn of the potential legal quagmire these couples could be sinking into? One option that New Zealand may have to consider is an amendment to its law to allow couples in this situation to apply for divorces here of their New Zealand marriages and, in doing so, grant complete marriage equality
In the last few weeks, I have focused my blogs on how you can get free legal advice and assistance. I have done this because every week, Family Law Results receives more and more calls from people who are financially stretched and can’t afford a lawyer.
I am wrapping this theme up this week by writing about a free service that can help equip you for co-parenting your children after a separation – the Parenting through Separation programme (PTS). Parenting through Separation doesn’t provide legal advice or representation. However, as a lawyer I have seen it assist my clients to resolve their parenting dispute. The Course can help you:
- understand your children’s needs;
- understand how separation effects children;
- work out how to make the best arrangements for your children;
- provide you with practical tips about what you can do to help your children after a separation;
- provide you with tools for communicating with the other parent.
Unless you have an urgent issue around the safety of you or your children, PTS should be the first call you make when you are trying to sort out the care of your children after a separation. The Family Court will not accept from you a non-urgent application about parenting arrangements unless you can show it your certificate to show you have completed Parenting Through Separation.
PTS is free. The course takes four hours, either in 1 session or split across 2 sessions. Don’t worry – you won’t be sitting in the course with your ex-partner. If your ex-partner also chooses to do the course, you will each be scheduled to attend separate courses.
There are a number of organisations throughout New Zealand that provide the PTS course, including Plunket and Barnardos. You can find other providers here.
Parenting through Separation has been running for several years now. I have had hundreds of clients attend the courses. I always ask them what they thought of the course. I have not had a single negative piece of feedback from my clients about it. The course isn’t just for people who have just separated. I have had clients who are well past their initial separation but who felt they were stuck in some negative co-parenting habits attend the course. As a mediator, I have also had mediation parties attend the course before coming to mediation. They also reported back positively about it.
Got a question about a parenting issue? Give Family Law Results a call on (09) 297 2010.
Getting Free If cash is tight and you want to try to resolve an issue about parenting or guardianship while staying out of Court, then Family Dispute Resolution (FDR) may be right for you. FDR is a mediation service. An impartial, trained mediator will guide you and the other party towards reaching agreement about issues to do with your children. If you are eligible, you can receive this service free.
Unless you have an urgent issue, attempting FDR will be necessary because you have to show you have completed FDR and Parenting through Separation before you can make an application to the Family Court for a parenting or guardianship order.
Whether you are eligible to receive free Family Dispute Resolution will depend on:
- Your income. You can check here whether you are eligible. You will need to have an idea of what your income has been in the last three months; and
- The number of dependents you have – this includes children who do not live with you but for whom you pay financial support such as child support;
If you think you are eligible for free FDR then you will need to arrange your FDR through an approved supplier, such as the FDR Centre. You can find other suppliers here.
The supplier will check your eligibility for free FDR. It will ask for your driver’s licence and your last three months bank statements. You will also need to fill out a simple form. The good news is that if you have already been approved funding for the Family Legal Advice Service (FLAS) in the last 12 months, you are automatically also covered for FDR and you do not need to reapply for funding. Likewise, any approval you are given for FDR funding will mean you can access FLAS within 12 months.
The supplier will also assess that your situation is suitable for FDR by asking you some questions. If it isn’t suitable, you will be given a certificate stating you are exempt from having to attend FDR. It will be important to obtain legal advice as to what steps you should next take. You might be able to do this under the Family Legal Advice Service.
Once your eligibility for funding has been approved and your situation has been assessed as suitable for FDR, the supplier will connect you with a mediator. The mediator will want to meet with each of you individually at first. At that meeting, the mediator will learn more about your situation, further assess your situation for suitability for mediation and discuss the process more with you. If there is agreement to do so, the mediator will then meet with both of you together to try to help you resolve your parenting issue.
Your time with the mediator will be limited therefore using that time to focus on the children and the future, rather than going over past grievances in your relationship with the other person, will be important. In order to get the most out of FDR, you may be recommended to attend preparatory counselling or conflict coaching. Again, if you have been approved funding for FDR, this will be free. Preparatory counselling or coaching is a great opportunity to speak with someone about what is concerning you and to receive coaching as to constructive communication about those concerns and issues.
Most mediators also urge parties to receive legal advice about their situation either before attending mediation or about any agreement reached at FDR. Having legal advice enables you to make informed decisions at mediation. If you are eligible for funded FDR, you should also be eligible to receive free legal advice under the Family Legal Advice Service. If you reach agreement at FDR or mediation, your mediator will write up your agreement. You can ask to have an opportunity to discuss the agreement with your lawyer before you sign it. You may also want to canvass with your lawyer whether you should seek Court orders that reflect aspects of your agreement.
The good news is that FDR is not just available to those who are eligible for funding. Even if you are not eligible for fully funded FDR, you will likely be eligible for partially funded FDR. The Family Dispute Resolution Centre offers partially funded FDR at a cost of $897.00 (at the time I wrote this).
FDR is for a limited amount of FDR services and time with your mediator. Some of our clients with parenting issues have indicated they want a higher level of service provided to them and more time made available to them by the mediator than funded or partially funded FDR provides. For those clients, we have been engaged privately to mediate their dispute successfully. Likewise, clients who recognise the benefits of mediation for their property issues often opt to engage us or another mediator privately to mediate.
FDR must be provided by approved Family Dispute Resolution Providers who are trained in family mediation. At Family Law Results, we are approved to provide FDR and mediation services so give us a call on (09) 297 2010. We are happy to provide FDR or mediation services or legal advice and coaching as you prepare for and work through mediation.
The Family Lawyer 