
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.

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.

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