Family Law

Contracting Out Agreements (often referred to as prenuptial agreements) are often viewed quite negatively. They can be seen as having one foot out of the door in a relationship. However, Contracting Out Agreements can be powerful tools to help you and your partner cement your intentions for how your property is dealt with when you die thus preventing a future argument between families. A Contracting Out Agreement is not just for separating couples - it can assist to ensure your wishes are upheld upon death. When you pass away with a Will, your partner has two options; they can chose to follow the terms of your Will pursuant to the Administration Act 1969 (“Administration Act”) or they can make an election under the Property (Relationships) Act 1976 (“PRA”) to have their share of relationship property determined. Why does this matter? This matters because modern relationships are complex. For a multitude of reasons you may not intend to leave your partner 50% of your property upon death. For many of our clients in second relationships, they want to provide for their partner, but they want the majority of their estate to go to their children from their first relationship. The option for partners to elect whether or not to follow your Will, can take control of your property out of your hands leaving what you may see as an unfairness to your children. This is why a Contracting Out Agreement can be such a powerful tool. With a Contracting Out Agreement in place, even if your partner elects a determination for a division of your estate in line with the PRA, they are bound by the terms of the Contracting Out Agreement which determines which assets are in the pool for division and which are out. What does a Contracting Out Agreement do? Under the PRA there is a presumption that upon death or separation your partner is entitled to an equal share of the relationship property. This legislation will apply to you unless you elect to “opt out” by entering into a Contracting Out agreement whereby you and your partner reach your own agreement on what property will be determined separate property and what will be relationship property. Without a Contracting Out agreement relationship property includes: The family home; The household chattels; Vehicles used for family purposes; That share of Kiwisaver or other superannuation policies accrued during the relationship; Your income; and Anything else acquired during the relationship or used for your shared life together. A Contracting Out Agreement is capable in most circumstances of mirroring the terms of your Will. It has the capacity to be very specific. Not only can you dictate which property belongs to which partner and their estate, you can also make special provisions for your partner upon separation or death. An example of this is in circumstances where you want the family home to pass to your children or some other third party upon death, you can still provide your partner with a qualified life interest in the home. You may decide, for example, that you wish for your partner to continue living in the home for a specific period of time (or the rest of their life) but as soon as they move out, start a new relationship, or die, the home will pass to your beneficiaries in accordance with your Will. A Contracting Out Agreement is a flexible tool capable of reflecting your Will. How do we make a Contracting Out Agreement? A Contracting Out Agreement is a binding legal document. Like most legal documents, there are specific procedures that must be followed to make sure your document is enforceable. For your Contracting Out Agreement to be valid and legally enforceable you will need to: Record the agreements reached in writing; Receive independent legal advice; and Have your signing witnessed by a lawyer. You and your partner will need different lawyers. Once you have engaged a lawyer, you can share your intentions for how you want your relationship property to be divided and any specifications for what you want to happen upon death. Lawyers can assist you and your partner to make sure you are both adequately provided for. If you have concerns about how your estate will be distributed when you die, we recommend that you discuss matters with your partner and get some advice. Furthermore if you already have a Will or a Contracting Out Agreement, we recommend that you review the terms of these documents regularly to ensure they still reflect your intentions and your circumstances.Talk to the Holland Beckett Family or Succession and Estates team for more information. This article was first published for First Mortgage Trust newsletter, April 2025.

Ashley Jones commenced petitioning for a change in the current dissolution laws after leaving an abusive marriage herself. After waiting two years, Ashley was told she had to locate her husband and organise for him to be served with the paperwork, despite not knowing his whereabouts and a final protection order being in place. This is obviously an upsetting, frustrating and potentially dangerous situation to navigate following an abusive relationship and lengthy wait to formalise the divorce. Previously, under the Family Proceedings Act 1980, an application for an order dissolving a marriage or civil union could only be made if the parties had been living apart for a period of 2 years. Although a one party application could be made, the other party would still need to be served with the paperwork and be given a right to respond. Ashley Jones\' petition to add additional grounds for dissolution for protected persons was successful and an amendment has just been passed into law. The Family Proceedings (Dissolution for Family Violence) Amendment Bill allows family violence survivors with a final protection order in place against their spouse to dissolve their marriage immediately upon a simple application to the Family Court. Under s39A, this Bill not only eliminates the need for parties to wait for 2 years before applying for a dissolution, but also the need for the protected party to serve the other with the application. Upon receipt of the application, providing a protection order is in place, the Registrar of the Family Court may make an order dissolving the marriage or civil union. For the purpose of this Bill, a protection order means: A final protection order under the Family Violence Act 2018; or A protection order: Made under section 123B of the Sentencing Act 2002; and That becomes a final order under section 123G of the Sentencing Act 2002; or A registered foreign protection order. This is good news for victims of family violence. Please reach out to our Family law team for further information.

The death of a loved one is never easy. There are all manner of things that need to be organised when your significant other dies, such as their funeral, as well as saying goodbye and grieving. The process can become even more complicated when issues regarding their estate and relationship property arise. It is not widely known that a surviving spouse or partner has a right to make an election either to take their entitlement under the Will or to seek an order for the division of relationship property, if that is more favourable than what they are left under the Will. A concept of moral duty to adequately provide for certain family members out of your estate also exists. It is also possible to seek provision from an estate if you provided a service whilst the person was alive on the basis they promised to provide for you in their Will, but this has not been recorded in their Will. Property (Relationships) Act 1976 (“PRA”)The PRA gives a surviving spouse or partner two options. Option A is to apply for a division of the relationship property, the starting point being an equal division. Option B is to simply take what you are entitled to under the deceased’s Will or if the deceased did not have a valid Will (dying ‘intestate’), to take what you are entitled to under the Administration Act 1969. In some circumstances, the executors of an Estate can also seek permission from the Court to bring a claim against the surviving spouse/partner for division of property between the spouse/partner and the Estate. This can be complex and is less common. Why make a choice for division of relationship property rather than taking what you’re entitled to under the Will? The surviving spouse or partner could be entitled to more under the PRA than they would receive under the Will. Examples include: If no provision or inadequate provision is made for the surviving partner in the Will, for example if the family home was owned by the deceased and it has been left to their children from an earlier relationship. Where there is no valid Will . If there is an outdated Will which provides for a previous partner and not the current partner. There are specific time limits involved with making an election, so it is important that legal advice is sought promptly. Legal advice will help you make an informed decision within the correct time frame while making the process as simple as possible. Family Protection Act 1955 (“FPA”)The FPA allows for a claim to be made by a spouse or partner (and other categories of persons) for provision from a deceased’s estate if proper maintenance and support has not been provided to the surviving spouse or partner. There are a number of circumstances that the Court can take into account when determining whether to grant provision from a deceased’s estate. Applications can be made by a spouse or partner, children and grandchildren, and even stepchildren or parents if they were being financially supported by the deceased and they feel there should have been provision made for them. As with a PRA claim, there are specific time limits for bringing an application under the FPA and it is important that legal advice is sought promptly. Law Reform (Testamentary Promises) Act 1949 (“TPA”)The TPA provides an avenue to make a claim if someone provided services to the deceased and in return they promised to leave them something under the Will, but in fact no provision was made for them. Such services can include anything above and beyond the reasonable obligations expected of a loved one. The claimant needs to prove: That they rendered services to, or performed work for, the deceased in their lifetime; That there was a promise by the deceased to reward the claimant; A link between the services and the promise; and There was no promised testamentary provision or reward provided in the Will for the claimant. The promise for compensation can be expressed or implied, in writing or verbal. The Court will consider all facts in the case when making a decision. When people get caught outThere are a few laws surrounding wills which may surprise you. The unpleasant truth is normally discovered by those who are already grieving. Administration Act 1969When a person dies without a Will or their Will is invalid, they are considered intestate. This means that distribution of their estate will occur under the Administration Act 1969. Section 77 of the Administration Act 1969 sets out the patterns of distribution according to who the intestate leaves behind, for example: a spouse or partner, children, and/or parents. Section 77 of the Administration Act 1969 is noteworthy in that, after the payment to the surviving spouse/partner of a prescribed amount and them receiving the chattels, it distributes the residue of an intestate person’s estate with one third to a spouse or partner and two thirds to any children. Therefore, it is particularly important for those who have children to leave a Will if they wish to provide more than a third of their estate to any current spouse or partner. Marriage cancels a will, but divorce does notWhen a Will exists before marriage, once a person is married, the Will is only valid if the Will states that it was made “in contemplation of the marriage”. On the contrary, when divorce or separation occurs, a Will is not automatically void. If the marriage or civil union has been legally dissolved, but the Will has not been changed, then the appointment of the spouse as executor and any disposition to the spouse under the Will (with limited exception where a disposition is in favour of children) is void and the Will must be read as if the spouse had died immediately before the Will maker. If you still wish to appoint your ex-spouse or partner as an Executor and/or include them as a beneficiary once your marriage or civil union has been dissolved, then we strongly recommend that you update your Will so that it is clear that your wishes are post-dissolution and still stand. If no legal dissolution of marriage or civil union has occurred, then the provisions of the Will that relate to the spouse are not automatically void. We strongly encourage that Wills are updated as soon as separation occurs otherwise an estranged spouse or partner may receive more than intended. If a Will is not updated, any children may be left to make a claim to the estate. Whilst separation will be a factor taken into account, it is onerous to leave family to work through this at a time which is already emotional. ConclusionIn an era where nuclear families are no longer the norm or majority, it is important to receive legal advice on, and to leave, a Will so that you can be in control of how your estate is distributed on your passing. Not only does this provide certainty for your loved ones, but it can resolve familial relationship issues before they arise in what is already a highly emotive time. The Holland Beckett Family and Estates teams would be happy to assist you, in the first instance in completing a legally valid Will, and also in working through any challenges to a Will that you face on the death of a loved one. Please do not hesitate to get in contact with us early on so that we can ensure the minimum amount of stress is placed on you throughout such difficult times.

On 7 December 2022, the High Court heard urgent arguments regarding a six month old baby (“Baby W”) who was in Starship Hospital and required heart surgery. The parents of Baby W were not consenting to the use of blood from people who had been vaccinated for COVID-19 in Baby W’s surgery, which required the use of donated blood products. The parents of Baby W wanted only non-vaccinated blood to be used in the surgery – a process called directed blood donation. Directed blood donations Directed blood donations are blood donations arranged by an individual, family or group of people for a particular person. Directed blood donations are not a practice that is supported by the New Zealand Blood Service (“NZBS”) due to there being no evidence that they lead to improved patient care. It is also thought that directed blood donations can increase the risk of acquiring transfusion associated infections (such as where a donor feels pressured to answer incorrectly to the pre-donation health survey in order to be allowed to donate blood for a specific person). The NZBS gave evidence in Court that there was no scientific evidence that there was any COVID-19 vaccine-related risk from blood donated by donors who were previously vaccinated with any COVID-19 vaccine approved for use in New Zealand. Other reasons against directed blood donation in these circumstances (and more widely) include: Baby W required rapid access to a full range of blood and plasma products to support the complex heart surgery; The introduction of unnecessary complexity into well-established blood collection and processing systems, translating to an increased risk of errors and possibility of inadequate blood product supply for the patient as some products, including those which Baby W was expected to require, are collected using specialised collection techniques from carefully qualified donors and are manufactured using regulated processes. Some products are even manufactured in Australia; COVID-19 vaccination (or infection) produces antibodies to the virus. There was no evidence of harm from antibodies to COVID-19 being present in blood and it was unlikely that any products of COVID-19 vaccines can end up in the blood stream. Should any such products have been in the donated blood, there was no evidence of harm from these products. Directed blood donations are also not recommended by international expert consensus guidelines, including in the United Kingdom, Australia and Canada. An instance where directed blood donations may be appropriate was said to include where a patient had a rare blood type, where no compatible volunteer donations were available. As discussed, this did not apply to Baby W’s circumstances. Guardianship Guardians need to agree on important matters such as whether medical treatment which is not routine in nature should occur. If the guardians cannot agree (for example, one guardian wants a child to be vaccinated and the other does not) then ultimately the Court can be asked to make a determination resolving the dispute between guardians.(for more information on this particular issue, see here). Sometimes parents agree but medical professionals disagree on the course of life saving treatment for a child. In this case, both parents were not consenting to the use of blood products from people who had received COVID-19 vaccination in completing heart surgery on Baby W but initially agreed that surgery needed to be completed. There were unvaccinated people that were prepared to give a directed blood donation. The Court has the ability to make an order appointing guardianship of a child under 18 years old to the Court or another named person for a specified period of time. Te Whatu Ora Health New Zealand applied to the Court for an order putting Baby W under the guardianship of the Court, so that the life saving surgery could go ahead using the NZBS available blood products (ie. blood from vaccinated and unvaccinated donors, without differentiation). The Judge took great care in their decision to acknowledge that the parents of Baby W wanted the best for their child and held genuine concerns, but ultimately agreed with expert evidence that blood donated by people who were vaccinated for COVID-19 was safe for use. The best interests of the child are the paramount consideration for the Court. Using blood from a donor of the parents’ choosing was not an available alternative, and this was not supported by doctors. Therefore, this was not a safe alternative in Baby W’s best interests. Baby W was put under Court guardianship to allow NZBS available blood products to be used for Baby W’s heart surgery effectively overruling the parents’ decision. The parents then withdrew their consent to the pre-surgery procedures and surgery generally, and the Court issued a further urgent minute widening the guardianship powers to include all necessary pre-surgery procedures and surgery generally. This is not the first, nor last time that the Court will exercise its powers to appoint the Court as guardian. Other examples of the Court intervening in this way include: For the purpose of obtaining a DNA sample to determine paternity of a child when one guardian refuses to consent to the sample being taken; Variously where religious beliefs meant that parents would not consent to a blood transfusion which was vital to a child, as well as for kidney or liver transplants which would require blood transfusion as a part of those procedures; When a baby’s mother carried hepatitis B but refused to consent to her baby receiving hepatitis B injections to stop them contracting the disease due to religious beliefs; When a nine year old’s father would not accept his child’s diagnosis of HIV, despite the child’s mother’s reason for death being recorded in part as caused by HIV. The child had also taken HIV medication for several years prior and there was serious risk to the child if the medication was not continued; and When a child’s safety is at serious risk in the care of either or both parents. Outcome An order enabling the surgery to proceed using NZBS blood products without delay was made as this was considered to be in the best interests of Baby W in the circumstances. It should be clarified that the Court intervened to the least extent possible in order to save Baby W’s life. This is a principle that the Court maintains to ensure that parents retain their guardianship rights for their children to the maximum extent possible in the child in questions’ best interests and welfare. The only act that the Court overruled the parents on, was the act of carrying out the surgery and the use of the blood products. Baby W was otherwise to remain under the parent’s guardianship once surgery was completed. The parents were informed at all reasonable times of the nature and progress of Baby W’s condition and treatment. If you find yourself facing an issue like this, the Family Law team at Holland Beckett Law would be happy to assist you in reaching resolution. The COVID Healthline is available for 24/7 advice and information in relation to COVID-19, including vaccination, on 0800 358 5453.

Provisions in the Residential Tenancies Act 1986 (“Act”) that enable victims of family violence to leave a tenancy at short notice are in force and can be used, with the corresponding regulations coming into force on 29 December 2022. On 11 August 2021, changes to the Residential Tenancies Act 1986 took effect. These changes included provisions relating to ending residential tenancies, including fixed term and periodic tenancies, on short notice if that tenant has experienced family violence during their tenancy. No financial penalty can be given to a tenant cancelling this way and the landlord’s agreement does not need to be sought. Cancelling a tenancy following family violence Tenants who experience family violence during their tenancy can cancel that tenancy by giving at least two days’ notice to their landlord. They will not need to apply to the Tenancy Tribunal. Family violence in this context is given the same meaning as under the Family Violence Act 2018 (for more information, see here). The notice itself must be given on a specified form and include certain information which has been set out in the associated regulations. This should be given to the landlord in writing. The notice will be considered to be received by the landlord from the moment it is sent, with the notice period starting the next day. The specified form can be found here. What sort of evidence of family violence is required? The notice needs to include at least one form of evidence that the tenant has experienced family violence during the tenancy. Acceptable evidence may include: a letter or email from one of a number of specified persons (which includes for example a lawyer, a social worker, a medical professional, a counsellor or Police); a Police Safety Order, a Protection Order or a charging document relating to the family violence; or a statutory declaration from the withdrawing tenant What happens once the notice has taken effect? Once the two-day notice period has passed, the tenant who is withdrawing will no longer be responsible for rent under the tenancy. If the person cancelling the tenancy is the only tenant, the tenancy will end. The normal end of tenancy requirements will apply. The cancelling tenant should give notice of their cancellation if there are other tenants remaining at the property. The notice does not have to be given in person and no evidence of family violence or other information needs to be shared. However, if no notice is given to the remaining tenants, the notice given to the landlord will still not fail. With a few exceptions, the amount of rent that the remaining tenants must pay is reduced for two weeks following the initial two-day notice period. After that, rent will return to the normal amount of rent, as per the tenancy agreement. There are options available to the remaining tenants to negotiate with the landlord to stay in the home with fewer tenants, add a new tenant, find a flat mate, or end the tenancy themselves. If a dispute arises, an application to the Tenancy Tribunal can be made to resolve the matter. Landlord obligations Landlords are encouraged to be flexible in their response to tenants who approach them under these circumstances and must keep any information shared with them confidential, including the notice and supporting evidence. Disclosure can only be made in limited circumstances and the landlord could be liable for a fine of up to $3,000 if they unlawfully share the notice or supporting evidence. Landlords can also agree to end the tenancy early without having to be provided with the notice or supporting evidence following discussions with their tenant. Landlords can calculate the amount of the reduced rent according to section 56B(5) of the Act. Such reduction in rent is not a variation of tenancy. Once the rent returns to the normal amount, this does not constitute a rent increase. Lastly, a landlord cannot challenge a family violence withdrawal notice on the basis of there being no family violence. If you are a landlord dealing with a situation like this and unsure of your obligations, we can assist you. You have the right to be safe If you are being abused, remember that it is not your fault, it is not acceptable, and it is not okay. You have the right to be safe and to live a life free from family violence. These new provisions offer a way out for those feeling stuck in a violent relationship due to living commitments. The specialist Family Law team at Holland Beckett are available to give advice on ending tenancies at short notice due to family violence and are experienced with applying to the court for protection orders also. Do not hesitate to reach out to us if you require assistance. If you are in danger now: Phone the Police on 111 or ask neighbours or friends to ring for you. Run outside and head for where there are other people. Scream for help so that your neighbours can hear you. Take the children with you. Do not stop to get anything else. Where to go for help or more information: Shine:  Free, confidential, national helpline operates 24/7 – 0508 744 633, www.2shine.org.nz Women\'s Refuge:  Free, confidential, national crisis line operates 24/7 – 0800 refuge or 0800 733 843, www.womensrefuge.org.nz Shakti:  Providing specialist cultural services for African, Asian and Middle Eastern women and their children. Free, confidential, national crisis line operates 24/7 – 0800 742 584 It\'s Not Ok:  Free, confidential, national helpline operating 9am-11pm daily – 0800 456 450, www.areyouok.org.nz Hey Bro Helpline:  Supporting men to be free from violence:  a free, confidential, national helpline operating 24/7 – 0800 HeyBro (439 276) Elder Abuse Helpline:  A free, confidential, national helpline operating 24/7 – 0800 32 668 65, text 5032, email:  support@elderabuse.nz Youthline: A free, confidential, national helpline operating 24/7 – 0800 376 633, free text 234, email:  talk@youthline.co.nz

It is important to have Enduring Powers of Attorney (“EPAs”) in place so that if an unexpected medical event happens the right people can look after you. If you lose your mental capacity and do not have EPAs in place, it can be a costly, time-consuming and stressful process for your loved ones to legally have the right to look after you. The Protection of Personal and Property Rights Act 1988 (“PPPR Act”) provides what happens when a person loses their capacity to manage their personal and property affairs - both when they have EPAs in place and when they don’t. Enduring Powers of Attorney EPAs are legal documents that set out who can take care of your personal or property matters if you are unable to (for example, if you have a stroke, are in a coma or have a cognitive disorder). The person you appoint to look after you is called your “attorney”. There are two kinds of EPA; property and personal care and welfare. To be valid, the Enduring Power of Attorney must be advised on by a lawyer or registered legal executive while you have medical capacity. Property The Property EPA gives your attorney power to make decisions in relation to your money and property, such as the sale of a home or payment of your bills. You can choose whether your property attorney can act immediately (while you have capacity) or only if you lose capacity. The Property EPA (or PPPR order – more below), can appoint one or more attorneys or a trustee corporation. You can also require your attorneys consult with or provide information to certain people. Personal care and welfare The Personal Care and Welfare EPA gives your attorney the power to make decisions relating to your health and welfare, such as choosing a rest home, your level of care or medical treatment. The Personal Care and Welfare EPA can only come into effect if a doctor certifies you have lost capacity and are unable to make your own decisions. The Personal Care and Welfare EPA (or PPPR order) can only appoint one individual at a time to make decisions on your behalf. However, you can appoint successor attorneys and/or require that the first attorney consult with other people when making a decision. Why should I enact EPA? Arranging for someone to be able to make decisions on your behalf by drafting EPAs is a cheaper and more simple process where you are in complete control over who is appointed and what activities the appointed person can complete on your behalf, such as making gifts to family members or charity. If you lose capacity before you have EPA in place, it is likely that someone will need to be appointed as your property manager and welfare guardian. This is so that they can enter contracts on your behalf, such as for you to be cared for in a rest home or to sell your property to help meet your care expenses and make decisions about your medical care when you are not in a position to do so yourself. Rest homes will not accept you into care if no EPAs or PPPR Act orders are in place. PPPR Act orders If EPA are not in place when someone loses capacity, an application must be made to the Family Court to appoint someone to make decisions on your behalf. These documents can also be organised through a lawyer, but this process takes place once you have lost capacity. You therefore have less control over who is appointed. Whilst every effort is made to appoint a suitable person, it may not be exactly who you would have intended to appoint given it is not a decision in your control any longer. PPPR Act orders process The process for applying to be a property manager or welfare guardian includes a medical assessment being conducted, the drafting of applications, affidavits and consent documents, seeking consent from interested parties, filing all documents in court, service of documents on interested parties, a lawyer for subject person being appointed and assessing the subject person, and court approval of the person to be appointed. If the appointed person is disputed, there may also need to be a court hearing. Further, once someone has been appointed to be your property manager and welfare guardian, that person must file a statement of assets and liabilities with the Court each year, and the orders need to be reviewed by the court – initially every three years, but the court may then decide that every five years is acceptable. A lawyer can assist the appointed person with this process if required, however this is likely to be at a cost to you personally. A record of income and outgoings must be kept, with any money spent for the benefit of the protected person only – not the appointed person. Public Trust conducts reviews of this. PPPR Act orders cease on death, bankruptcy and if the protected person regains capacity – although in most cases this is not likely to occur if the incapacity is due to dementia or permanent disability. At a time when you have recently lost capacity and your family needs to ensure that you are cared for appropriately, it is far simpler if you have signed EPA which can then come into effect immediately. If you have not entered into EPA then your family can be put in the position of having to go through the Family Court process to obtain welfare guardian and property manager orders as described above. This process takes time and effort which both increase cost. This can also mean there is a hold up in important decisions being able to be made, as it generally takes several months to work through the Court process before orders for appointment as welfare guardian/property manager take effect. It is significantly quicker and less expensive to enter into EPAs when you have capacity, than for your family members to have to seek PPPR orders once capacity has been lost. Just like Wills, EPAs are important documents to draft whilst you have capacity. Having documents like these in place will save your family time, cost and stress if you lose capacity and they need to get the Family Court involved to look after your personal care and welfare, and property matters. It will ensure that the people you trust and want to take care of these roles are in position to act immediately should they need to. If you have any queries, would like to prepare EPAs or need to apply for PPPR Act orders, please reach out to us at Holland Beckett.

Separation can be a difficult process. Not only are there a lot of emotions involved, but there are likely to be assets that are owned jointly, or separately but which have been used by both parties during the relationship. Working out who gets to keep what can be straight forward in some cases, but often the matter is more complex than you may expect. The Property (Relationships) Act 1976 (“PRA”) applies to marriages, civil unions or de facto relationships of three years or more. In limited circumstances, the PRA can also apply to relationships of shorter duration. What is relationship property? The PRA defines both relationship property and separate property. The family home and family chattels, whenever acquired and in whoever’s name they are legally owned, are relationship property. Contrary to popular belief, whether or not you owned the family home or chattels before the relationship, they will be relationship property dividable equally between both parties to the relationship (subject to certain limited exceptions). Family chattels can include furniture, appliances, household tools, pets, as well as cars, caravans, trailers and boats if they were used wholly or principally for family purposes. Gifts from one spouse or partner to the other are generally not regarded as relationship property – so no, you don’t have to give back the rings. Relationship property may also include superannuation and KiwiSaver, shares and investments, business interests, life insurance policies, rental and investment properties, property acquired in contemplation of the relationship, rights in respect of a trust, as well as relationship debt (which does not have to be in the parties’ joint names). Bank accounts which hold funds earned or received during the relationship are also likely relationship property despite being in the name of only one of the parties. Taonga and heirlooms, as well as chattels used wholly or principally for business purposes, are excluded from the definition of family chattels. This means these items will usually be separate property rather than relationship property, however this is decided on a case-by-case basis. What is separate property? Any property that is not relationship property is separate property. Such property does not need to be divided between the parties to the relationship. Generally, separate property also includes: Property which was acquired by either party whilst they were not in a relationship and that has not been used during the relationship for family purposes; Property acquired out of separate property or any proceeds of sale of separate property; Any increase in value of separate property and any increase in income or gains derived from separate property; Property acquired from a third person by gift, inheritance, or as a beneficiary of a third person’s trust. It is important to keep property acquired by succession, survivorship, gift, or under a third party’s trust separate if you intend it to be separate property. If property can be seen to have been intermingled with relationship property, making it unreasonable or impracticable to regard it as separate property, it will become part of the relationship property pool. How is relationship property divided? While relationship property is generally divided equally between the parties of the relationship, there are limited circumstances where division should occur in unequal proportions. This may be due to economic disparity between the parties because of the effects of the division of functions within the relationship or in extraordinary circumstances that would make equal sharing repugnant to justice – although this is a high threshold to meet. Disclosure In order for your lawyer to advise you on what the full relationship property pool consists of and what your legal entitlements are, a process of disclosure by both parties of all assets, debts and interests must take place. Values will be determined, as well as the status of the item as relationship property or separate property. Following the completion of that process, the division of property can usually then be agreed by way of negotiation. Will we need to go to Court? Most people do not need to resort to the Family Court in order to resolve their relationship property division. It is only if an agreement cannot be reached between you and your former spouse/partner that Court proceedings are needed. Who gets what? You won’t walk away with half of a car so don’t get the chainsaw out. Generally, global division of relationship property can be reached without property needing to be sold – or cut in half. This involves taking into account the total value of the assets being retained by each party, and one global adjustment figure being paid by one party to the other party to ‘equalise’ the overall division so that each party is keeping 50% of the total net value of the relationship property pool. What about the pets? With the classification of pets such as cats and dogs as family chattels, you obviously will not both be able to keep your fur babies. The court has formulated their own way of determining who gets to keep the pet based on the pet’s best interests. This means the court considers things like who takes the best care of the pet, who is able to provide the best home for the pet and the pet’s needs. Independent legal advice Each party must receive independent legal advice as part of entering into a legally binding Separation Agreement. To be valid as a full, final and binding settlement, any agreement must be in writing and signed by both parties after independent legal advice and in the presence of their lawyers. If you find yourself experiencing a break up of a long term relationship, the specialist Family Law team at Holland Beckett can offer you practical and pragmatic advice with care and sensitivity. We have a team of lawyers who are experienced in negotiating and drafting Separation Agreements, or taking matters to court if needed.

Family violence is incredibly common throughout the world, but Aotearoa New Zealand has a particular problem with high levels of family violence occurring.  With the stress that the COVID-19 pandemic has added, it has been reported that family violence levels are at an all time high. One way of seeking protection from family violence is to obtain a protection order from the Family Court.  Such an order protects both the person who applies for it and their children currently under 18 who regularly live with them.  The person who the protection order is applied for against is called the respondent. While a protection order is “just a piece of paper” in the sense that it relies on the respondent complying with its terms and cannot on its own keep you safe, it means that the police treat any further violence more seriously.  It also means that you do not need to wait until you are threatened or harmed to contact police – you can do this as soon as the respondent comes near you or contacts you, as that in itself is a breach of a protection order. In order to be granted a protection order against someone, three elements must be met: There must be family violence in the relationship, either past or present; There must be a family relationship between you and the respondent; and The making of a protection order must be necessary to protect you or your children. Family violence and family relationships Family violence is physical, sexual or psychological abuse inflicted against someone by another person who is or has been in a family relationship with them.  Violence may also be dowry related.  A single act may amount to abuse, as may a number of acts which form a pattern of behaviour, even if those acts may appear to be minor or trivial in isolation. Whilst physical and sexual abuse may be more easily identified, psychological abuse includes: Intimidation or harassment including: Watching, loitering near, or preventing access to or from a person’s place of residence, business, employment, or educational institution, or any other place that a person visits often. Following someone about, or stopping or accosting a person in any place. Entering or remaining on land or in a building that a person is present in circumstances that constitute trespass. Damage to property; Ill treatment of household pets or other loved animals; Financial or economic abuse, such as unreasonably denying or limiting access to money, preventing or restricting employment opportunities or access to education; Withdrawing the care or charge of, or access to any aid or device, medication or other support that affects, or is likely to affect someone’s quality of life due to their age, a disability, health condition or any other cause; In relation to a child, causing or allowing a child to see or hear the physical, sexual or psychological abuse of a person with whom the child has a family relationship, or putting or allowing the child to be put at real risk of seeing or hearing that abuse. Behaviour that does not involve actual or threatened physical or sexual abuse; and Threats of physical or sexual abuse, or of abuse described above. A family relationship includes those who are married, those who have a civil union, family members, those who share a household (but are not only flat mates) and those that have a close personal relationship (not employee/employer). How a protection order works A protection order can be applied for without notice if the circumstances are serious enough.  In such urgent circumstances, an order can be made within 24 hours without the respondent being notified until the order is made.  In less urgent circumstances, protection orders can be applied for on notice, which means the respondent will have the opportunity to respond first before the Court makes any decision.  In your application you will need to detail the history of the abuse as thoroughly as possible, including approximate dates and times. Your lawyer will help you with this. If you are applying “without notice,” you will also need to show that any delay would or might cause undue hardship or a risk of harm to you or your children.  If the Judge is not satisfied that the delay would cause you or your children harm, then they can order that the application proceed “on notice,” or specify a shorter time frame for the respondent to file a response. If you apply on notice, a Judge can’t make the order until the respondent has been served and given the opportunity to be heard on the matter. On a “without notice” application, if the Judge is satisfied that the application should be granted, an interim protection order is made.  If the interim protection order isn’t challenged by the respondent, it will automatically become final after three months. Once an interim protection order is made, if the respondent breaches the order, you can report this to Police.  The respondent may be arrested and charged with the breach.  Breaching a protection order is a criminal offence and carries a maximum sentence of three years’ imprisonment. If a protection order is granted, the respondent is usually also ordered to attend a non-violence programme.  The purpose of this is to assist respondents in changing their behaviour to stop using family violence as they learn new skills to manage their emotions.  As a protected person, you and your children (if any) have the option of attending a safety programme as well.  These programmes are all free to you, being funded by the Ministry of Justice. You can get a protection order even if you still want to remain living or in contact with the person that you get the protection order against.  If you don’t want the person to be able to come near you, or contact you in anyway unless specific arrangements are made, you can get a no contact condition as a part of the order. When you apply for a protection order, you may also get an order which means that you and your children can stay in the family home, whether it is owned or rented by you, and the offending person needs to move out straight away.  This is called an occupation order.  In addition, the Court can make orders allowing you to have possession of furniture and household appliances. When there is no family relationship When there is no family relationship between the people involved in the abusive behaviour, you will not be able to get a protection order.  In these circumstances, you would generally need to seek a restraining order in the District Court under the Harassment Act 1997. Conclusion If you are being abused, remember that it is not your fault, it is not acceptable, and it is not okay.  You have the right to be safe and to live a life free from family violence. The specialist Family Team at Holland Beckett Law are well versed in filing applications for protection orders.  If you need help to obtain such an order, do not hesitate to reach out to us. If you are in danger now: Phone the Police on 111 or ask neighbours or friends to ring for you. Run outside and head for where there are other people. Scream for help so that your neighbours can hear you. Take the children with you. Do not stop to get anything else. Where to go for help or more information: Shine: Free national helpline available 24/7 - 0508 744 633 www.2shine.org.nz Women\'s Refuge: Free national crisis line operates 24/7 - 0800 refuge or 0800 733 843 www.womensrefuge.org.nz Shakti: Providing specialist cultural services for African, Asian and Middle Eastern women and their children. Crisis line 24/7 0800 742 584 It\'s Not Ok: Information line 0800 456 450 www.areyouok.org.nz Hey Bro Helpline: supporting men to be free from violence 0800 HeyBro (439 276) Elder Abuse Helpline: 0800 32 668 65 – 24 hours, text:  5032, email:  support@elderabuse.nz Youthline: 0800 376 633, free text:  234, email:  talk@youthline.co.nz

The Family Court (Family Court Associates) Legislation Bill (Bill) has recently been introduced to deal with the significant backlogs in the Family Court. Part of the reason for Family Court delays is the high workload of Judges, as well as the impact of Covid on staffing levels. The Bill creates a new role in the Family Court – Family Court Associates, who will help to alleviate the workload of the Family Court Judges. Why has the Bill been introduced? In 2014, a number of reforms were introduced to improve access to family justice services in New Zealand. In 2019, an Independent Panel found that “Despite a reduction in the number of cases being filed, there has been no reduction in delay. In fact, delay has increased”. One key finding was that Judges are spending too much time performing administrative work. Their recommendation was to transfer some of the responsibilities of Judges elsewhere. The Bill creates “Family Court Associate” roles to take on these responsibilities. Who are Family Court Associates? Family Court Associates will be lawyers that have held a New Zealand practising certificate for at least seven years, and who are, by reason of their training, experience, and personality, deemed suitable to be a Family Court Associate. What will Family Court Associates do? They will reduce Judges’ workloads by performing some of the Judges’ tasks in the earlier stages of the court process. This includes making decisions that can currently be made only by Judges. Their tasks will include: Appointing a lawyer to represent the children (tamariki), or a person that lacks capacity; Appointing a lawyer to assist the Court or to question witnesses in certain circumstances; Directing cultural, medical, psychiatric, psychological, or other reports; Deciding whether an application for a guardianship order or parenting order has sufficient evidence to be filed; Directing parties to attend Family Dispute Resolution or counselling; Convening and attending settlement conferences; Varying an interim order to enable a parent (who has neither the day-to-day care for, nor contact with, the child) to have supervised contact with the child facilitated by an approved provider, or assigning a hearing to enable them to be heard in court; and A number of other tasks to reduce Judges’ workloads. When is this to change? The Bill is currently in its First Reading and the next stage is consideration by a Select Committee which will ask for and consider public submissions. We consider that action to reduce delays in the Family Court will be a positive for our clients, and ensure quicker access to justice. If you would like further assistance with a family dispute or to prepare a submission for consideration by the Select Committee please contact a member of our Family Law Team.

On 9 December 2021, the Births, Deaths, Marriages, and Relationship Registration Bill (“Bill”) was unanimously passed by Parliament. This Bill means that those who do not identify with the sex assigned to them at birth are able to correct this themselves far more easily. Self identification of sex process Currently, the process for changing the sex on one’s birth certificate requires an application to the Family Court. The application must contain evidence that the individual has undergone irreversible medical treatment to physically conform with a different sex, such as hormone therapy or genitalia reconstruction. This creates a cost barrier for those who cannot afford such medical treatment. There are also cost barriers associated with making such an application to the Family Court. The Bill acts to remove this complex and often inaccessible process. Once the majority of the Bill comes into force on 15 June 2023, those who wish to change the sex recorded on their birth certificate can apply directly to the Registrar-General with a statutory declaration which follows a self-identification process. Such self-identification will be based on whether a person identifies as male or female, rather than eligibility criteria such as medical treatment. This is an important step towards helping takatāpui, transgender, non-binary and intersex New Zealanders hold an identity document which aligns with who they are. Self identification is a more accessible and inclusive way to amend the sex recorded on birth certificates. Updating the language of the Act Another focus of the Bill is to update the language of the Act. On 15 December 2025, a provision will come into force which enables a parent that is notifying the birth of a child to specify whether they wish to appear as mother, father or parent on that child’s birth certificate. This is another important change to enable New Zealanders to establish their own identity. Conclusion For cisgender New Zealanders, changing the sex listed on their birth certificate is not something that has required consideration. However, for those who have faced regular stigma, exclusion, social isolation and even violence based on sex, this is an important update to the law. The Family Law team would be happy to assist with any legal representation required to change your sex on your birth certificate or discuss aspects of the updated Act.

Surrogacy is an arrangement which enables couples to conceive when they are experiencing hardship conceiving themselves.  What many people are not aware of is the legal implications surrounding surrogacy, in particular the rights of the “intending parents” – that is, those who intend on assuming the psychological parental role of raising the child. What is surrogacy? Surrogacy occurs where a surrogate mother agrees to carry a child to term on behalf of “intending parents” and in place of the intended mother throughout the term of gestation. The surrogate is the “carrier” of the child. If the surrogate has a partner, under current law, that partner must consent to the surrogate carrying the child. The surrogate and their partner are the “carriers” of the child. There are two forms of surrogacy: Traditional surrogacy: The surrogate’s eggs are used, making her the biological mother of the child. Gestational pregnancy: The woman carrying the child to term has no genetic link to the child and the embryo is typically biologically that of the intending parents. Legal parenthood Whilst surrogacy itself in New Zealand is not illegal, any surrogacy arrangement is unenforceable. This means that, until a child is adopted by intending parents, the surrogate mother and her partner (if any) remain the legal parents and guardians of the child and they could change their minds at any time about the child going to the intending parents. This is true regardless of whether one or both of the intending parents donated their genetic material for the pregnancy by surrogate. Once the child is born via the surrogate, the intending parents must legally adopt the child before they are recorded as the parents. The adoption process is done through the Family Court. The mandatory 10 day stand down period before the application for adoption can be made still applies in these circumstances. It is possible, however, with social work consent, to have the child placed with the intending parents from birth. The court needs to be satisfied that the intending parents are “fit and proper” people to adopt the surrogate child and also that the carriers consent to the adoption. Until the adoption order is granted, the carriers will have all guardianship responsibilities for the surrogate child. The Care of Children Act 2004 (“COCA”) defines guardianship as having all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child. An exercise of guardianship of a child means determining for or with the child, or helping the child to determine, questions about important matters affecting the child. Important matters affecting the child include: The child’s name (and any changes to it); Changes to the child’s place of residence that may affect the child’s relationship with their parents and guardians; Medical treatment for the child (if that medical treatment is not routine in nature); Where, and how, the child is to be educated; and The child’s culture, language, and religious denomination and practice. Guardians are required by law to act jointly, by consulting with each other wherever practicable with the aim of securing agreement on important matters. Once the adoption order is granted, the carriers lose any and all guardianship or parenting rights to the surrogate child. That means that they will not have a say in any of the matters referred to above, they cannot enforce contact with the child and the intending parents do not need to consult with the carriers on matters such as the child’s education, religion or health options. The birth certificate is amended to record the intending parents as the surrogate child’s parents. Financial support Surrogates can only be financially supported by intending parents for the physical surrogacy process (such as in-vitro fertilisation or IVF), independent legal advice in relation to the surrogacy, and other reasonable expenses incurred as a result of the surrogacy arrangement. Any financial support given outside of these reasons is not lawful and carries penalties of up to $100,000 fine or one year imprisonment. The intention behind this law was to prevent commercial surrogacy. However, the effect is a financial limitation on the surrogate mother when opinion varies as to whether a surrogate mother qualifies to take paid parental leave under the Parental Leave and Employment Protection Act 1987. A surrogate would qualify for 10 days unpaid special leave but this does not resolve the issue of loss of income in relation to the pregnancy. The decision to be conservative with the payment of reasonable expenses can be linked to the unenforceability of surrogacy arrangements. For example, a couple may prefer to be careful with what financial support is provided, despite wanting to support the surrogate, when the surrogate could decide to keep the child. In this case, the couple would be left open to accusations of committing a criminal offence by providing liberal financial support. This also leaves surrogates financially vulnerable. Te Ao Māori view Whāngai is a relatively well known Māori arrangement where a child is given to others to raise. The arrangement is considered similar to surrogacy. However, one of the principles that underpins whāngai is whakapapa (genealogy) and for this reason, whāngai arrangements rarely go beyond whānau or hapū. This ensures that a whakapapa connection is maintained between the child and the birth parents. Reasons for whāngai arrangements other than infertility also include strengthening relations within hapū or iwi, or to instil cultural knowledge into a child. However, once a child is legally adopted in Aotearoa New Zealand, the carriers lose any guardianship rights and cannot enforce contact with the child. The Law Commission’s July 2021 Review of Surrogacy Issues paper notes that this goes against whakapapa in principle. While it is still possible to make a contact agreement for the carriers to remain in contact with the child, the law affords guardians with ultimate deciding rights. Further, once intending parents adopt a surrogate born child, they are the legal parents recorded on the new issue of that child’s birth certificate, whether or not they are the child’s full genetic parents. This can cause a loss of knowledge of whakapapa if open conversations are not had and causes issues in relation to state law specific to that child’s hapū or iwi. Conclusion With the myriad issues that arise in relation to surrogacy arrangements, both for the intending parents and the carriers, it is important to seek advice early on to ensure as smooth a process as possible. The Family Law team at Holland Beckett Law would be happy to help you with advice in relation to surrogacy arrangements and adoption orders.

COVID-19 vaccination of children as a guardianship issue On Monday, 17 January 2022, the New Zealand Government announced that tamariki and children aged five years or older are now eligible to receive two doses of the Pfizer vaccine for COVID-19 for free. However, there is no legal or regulatory requirement (vaccine mandate) for tamariki or children to be vaccinated. This means it is up to a child’s legal guardians (in most cases – their parents) to decide if they want their child to be vaccinated. Such a decision may be straightforward in many households – but what if one parent doesn’t agree? Guardianship The Care of Children Act 2004 (“COCA”) defines guardianship as having all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child. An exercise of guardianship of a child means determining for or with the child, or helping the child to determine, questions about important matters affecting the child. An important matter affecting the child includes, amongst other matters, medical treatment which is not routine in nature. Guardians are required by law to act jointly, by consulting with each other wherever practicable with the aim of securing agreement. Vaccination has been held by the Courts to be non-routine medical care and is therefore a guardianship decision. This means that one parent/guardian cannot lawfully make a decision on their own as to whether their child is to be vaccinated without consulting with the other parent. Guardianship responsibilities are a separate matter to care arrangements for the child. A parent/guardian who has day-to-day care does not have a greater say on guardianship matters than any other parent/guardian of that child, both or all guardians have an equal say. Children’s views COCA recognises that children’s views about matters that concern them must be heard and taken into account. A child’s welfare and best interests must be the first and paramount consideration in decisions concerning the child and a child’s safety must be protected. The older the child is, generally the more weight that should be attached to their views – both in and out of court. Consent to medical treatment The New Zealand Bill of Rights Act 1990 (“NZBORA”) gives everyone the right to refuse medical treatment, including children, so long as they are competent and fully understand their decision. COCA also provides that a child over the age of 16 can give or refuse consent to medical treatment. This doesn’t mean that children under 16 years of age cannot consent to medical treatment. The test is whether the particular child has sufficient maturity and intelligence to understand the nature and implications of the treatment that they are consenting to. For a child to consent to vaccination in New Zealand, a health professional must be satisfied that the child understands why the vaccination is necessary and the reasons for it. The health professional will discuss the vaccine and answer any questions that the child and their guardian may have. They must also be satisfied that the child understands the risks, benefits and outcomes involved. A recent decision in Long v Steine [2022] NZFC 251 highlights that if a child has sufficient maturity and intelligence, they may be deemed to have capacity to consent to, or refuse, medical treatment themselves. The child in this case was aged 12 and was opposed to receiving the COVID-19 vaccination. The Family Court declined to make an order that the child be vaccinated, having regard to his age, maturity and his rights under the NZBORA. The court will generally only override the views of children who are old enough to display this level of understanding in serious, usually life threatening, situations. With regards to COVID-19, and vaccinations more generally, the Courts have generally found in favour of vaccination in accordance with Ministry of Health guidelines, where there was no medical evidence that suggested that the child was at risk of the vaccine. A strong consideration is that contracting COVID-19 poses an immediate risk to a child’s physical safety, so steps should be taken towards limiting that risk wherever possible. However, there is no blanket policy applied by the Court to always find in favour of vaccination. The particular circumstances of the child in question and what decision would be in their welfare and best interests are always the Court’s focus, creating an individualistic approach to vaccination decisions. Guardianship disputes If guardians cannot agree between themselves whether their child should receive the COVID-19 vaccination, there are options available to assist. These options include: Mediation: Family Dispute Resolution services offer mediation to assist in resolving guardianship disputes New Zealand wide. An independent third party will aid the guardians to reach agreement. This option is likely to be especially helpful in cases where one party is vaccine hesitant; Engage a lawyer: Individual circumstances vary, so case-specific legal advice may help parties to find resolution without needing the Family Court; and Family Court: An application to resolve a dispute between guardians can be filed in the Family Court pursuant to s 46R COCA. In appropriate circumstances, urgency can be sought. A judge will then make the decision at a hearing as to whether the child should be vaccinated. Ultimately, the most timely and cost effective option will always be negotiating these matters with the other parent or guardian with a view to reaching agreement, wherever possible. Review of refusal to give consent There is also a process available to children who wish to seek a review of their parent or guardian’s decision to give or withhold consent. A child 16 years or older may apply to the Family Court for a review of the decision and seek an order that allows for vaccination for example. This ability relates to any important matter such as: The child’s name (and any changes to it); The child’s place of residence if it affects the child’s relationship with any parent or guardian; Other medical treatment of the child which is considered not routine in nature; Where and how the child is to be educated; and The child’s culture, language, and religious denomination and practice. This is consistent with a child’s transition from being under the guardianship of their parent or guardian and being encouraged to make their own decisions and gain independence as they get older. Therefore, a child who is between 16 and 18 years of age and wants to be vaccinated, but their parents or guardian will not consent, may apply to the Family Court to have a litigation guardian appointed to pursue a review of refusal to give consent. Alternatively, if the court believes that the child is capable of making their own decisions, the child may represent themselves. While the likelihood of a child needing to take this route to ensure they get vaccinated may be low, it is crucial that children 16 years old and over understand the importance of actively participating in decisions concerning them (depending on their level of maturity and understanding). Conclusion It is natural to have concerns about the safety of a vaccination, particularly in an era of widespread misinformation. It is important that everyone can access reliable information about the vaccine in order to make the best decision for their own health, as well as their whānau, family and communities. In many situations, engaging in wānanga, an open discussion with others about experiences, questions, fears and reservations, with a level of curiosity can resolve differences in views. Regardless, it is important to advise other parents or guardians of any scheduled vaccination and also once such vaccination has taken place. Parents/guardians should not act unilaterally in making decisions about vaccination for their children and must consult with the other parent/guardian(s). If you find yourself facing the difficult circumstances described above, the Family Law team at Holland Beckett Law would be happy to assist you in reaching resolution of the matter. The COVID Healthline is available for 24/7 advice and information in relation to COVID-19, including vaccination, on 0800 358 5453. References Vaccination for children and young people | Unite against COVID-19 (covid19.govt.nz) COVID-19 vaccine and children: Information for parents and caregivers | Ministry of Health NZ

This article was published in the New Zealand Law Journal, where our family team comments on a recent Court of Appeal case where ongoing maintenance was awarded to a de facto partner for an extended period of time, and explains why the current maintenance system needs an overhaul. In March 2020, the High Court heard the matter of Kwok v Rainey [2020] NZHC 923. It was a substantive hearing on the near full gamut of relationship property claims possible under New Zealand’s relationship property regime, with some highly interesting findings (particularly in relation to costs as damages, at [244] to [264]). However it had one concerning outcome: it found that Mr Rainey was liable for maintenance to Ms Kwok of over half his yearly income for a period of 3.5 years, which was almost half the length of the relationship itself. On appeal (Rainey ato David Rainey Family Trust v Kwok [2021] NZCA 199), this ruling was overturned, and Mr Rainey was ordered to pay the High Court level of maintenance for a period of two years, and a vastly reduced maintenance sum for a further nine months. This article posits the Kwok v Rainey is a clear example of why the current regime can produce unjust outcomes, why reform is needed and why Family Income Sharing Arrangements (FISAs) may provide the answer. This case illustrates both the inadequacies of the current law and the injustice that can occur when it is improperly applied. Facts Wan Lan Kwok, a Hong Kong resident, met David Rainey, a builder from Tauranga, when she was in New Zealand in August 2008. There was evidence that Ms Kwok was working (albeit without a visa). Both were in their mid-forties and had come from previous long-term relationships with two adult children each. They quickly developed a relationship. By 1 March 2009, Ms Kwok was living and working with Mr Rainey in New Zealand. When granted a resident’s visa on the basis of her partnership with Mr Rainey in August 2011, Ms Kwok relocated to New Zealand. During the relationship Ms Kwok assisted Mr Rainey on building sites with basic labour from time to time and was paid a wage by his company. Mr Rainey was also employed by his company as a builder. Mr Rainey, having seen his assets halved on two occasions as a result of relationship property proceedings, was committed to the relationship but wanted to protect his own assets. After the couple had lived together for approximately two and a half years, Mr Rainey sought advice from the law firm Gascoigne Wicks (GW) as to how to do so. By this stage Mr Rainey had purchased a section in Tauranga where he intended to build a house. Based on GW’s advice, Mr Rainey set up a trust which was to own the section. Mr Rainey then built a house on the section and they lived there as a couple until the relationship came to an end in September 2016. Both parties were of modest means. Ms Kwok was 55 at the time of the hearing and had lived in New Zealand on and off for 12 years. Mr Rainey was 54, and unable to work full time as a builder after battling cancer. Mr Rainey has had two previous marriages, and had two adult children with his first wife. Mr Rainey and Ms Kwok had no children together.  In October 2018, Ms Kwok had received an interim maintenance order by the Family Court of $200 per week for six months.  In March 2020 at the High Court hearing, Ms Kwok sought a half share in the house (held in trust), the current account of Mr Rainey’s building company, $785 of maintenance per week and a half share of the family chattels. Overview of present law  Post-separation maintenance is governed by the Family Proceedings Act 1980 (FPA). The overarching statutory policy is that neither party to a de facto relationship is liable to maintain the other after ceasing to live together (s64), A ‘clean break’ principle is imposed, which encourages former partners to become self-sufficient. There are statutory exceptions to this general policy. The relevant sections for determining a de facto maintenance application are ss 64, 64A, 65, 66, 69 and 70. Principally, s 64 deals with maintenance in a de facto relationship (as was the case in Rainey v Kwok). This section provides that each partner is liable to maintain the other only to the extent necessary and where the other partner cannot practicably meet their own reasonable needs because of specified circumstances (s64; s64A). Sections 69 and 70 provide the Court with a broad discretion as to how payment will be made and how it is to be calculated. However, these wide powers are then tempered by ss 64 and 64A, which set out the only circumstances in which one party will be liable to maintain the other after the relationship ends. Section 65 then prescribes matters that the Court must have regard to in determining the amount payable, and certain kinds of conduct and misconduct may also be taken into account (s 66). Ultimately, the Court can consider any relevant circumstance in determining if the maintenance threshold is met (s64; s64A), and must consider factors relating to both payer and payee’s means and financial responsibilities when determining quantum (s65). It cannot be a punishment for the breakdown of the relationship (G v C FAM-2007-004-2155/2156, 8 October 2008 as cited in C v G [2010] NZCA 128 at [17]). Having a broad discretion certainly provides the tools for a fact specific result, accepting that there is no one size fits all in maintenance, However, in the writers opinion, the present system also can produce unjust results. Interestingly, case law on interim maintenance has developed a justice inquiry (Ropiha v Ropiha [1979] 2 NZLR 245 at 247; Cooper v Pinney [2016] NZHC 1633 at [20]), but this ‘sanity check’ has not developed in the final maintenance inquiry. The High Court judgment Thomas J ordered that Mr Rainey pay $785 per week for (in effect) 3 and a half years. That was almost half the length of the entire relationship, and in circumstances of both parties being of modest means, both in their forties when they met, no children together and Ms Kwok taking no steps to obtain employment in the four years between separation and the hearing. Her Honour, citing Slater v Slater [1983] NZLR 166 (CA) at 174, held that parties cannot be expected to be self-supporting until they have received their share in relationship property. The appeal The High Court decision was overturned in part. The Court of Appeal (Cooper, Gilbert and Goddard JJ) held that a reasonable period for Ms Kwok to become self-supporting would be two years, had she had her relationship property. Because Ms Kwok did not have her share for four years (due to the High Court litigation), a period of two years at $785 per week and nine months at $200 per week was ordered. The Court also held that her Honour was wrong to impose the inflexible principle of requiring relationship property before partners can be expected to support themselves. Worryingly, the Court of Appeal did not think it was necessary to determine Mr Rainey’s actual income because he could earn a “reasonably good income” as a builder. When dealing with parties of modest means (not the Mr Clayton’s of the world:  see Clayton v Clayton (Vaughan Road Property Trust) [2016] 1 NZLR 551, [2016] NZFLR 230, [2016] NZSC 29)) actual affordability should certainly be a relevant circumstance to take into account (s65). That aside, the maximum actual income for Mr Rainey referred to in the decision was approximately $80,000 per annum. Payment of $785 per week equates to approximately $40,000 per annum. The Court therefore considered it reasonable for Mr Rainey to pay in effect 50% of his income to Ms Kwok whilst paying all outgoings and expenses for the family home (including the mortgage). Ms Kwok also benefitted from the delay caused by litigation by the increase in value of the family home. Issue: unfair and uncertain Despite the broad discretion, in practicality, the Court’s inquiry is very applicant/payee focused. Certainly, where a more traditional relationship exists, the current maintenance provisions do the job. However, it is the writer’s view that where the ‘payer’ is not a high-income earner, the outcome can cause real financial harm. The Court’s inquiry does not seem to place enough weight on the functions of the relationship and actual affordability for the respondent. Under the FPA, it must still be reasonable for the respondent to pay maintenance and for it and be causally connected to the relationship. It can lead to unpredictable outcomes.  In Rainey, Ms Kwok claimed that her age and inability to speak English prevented her from being able to gain employment.  Yet those factors existed when she first came to New Zealand before meeting Mr Rainey, and she had taken no steps to improve her circumstances post-separation. Proposed Reform In 2017, the Law Commission undertook a review of the relationship property regime in New Zealand and sought to modernise it in line with New Zealand’s changing society. Ultimately, the Law Commission recommended that s 15 of the Property (Relationships) Act 1076 (PRA), ss 63, 64, and 82 of the FPA be repealed and replaced with a FISA regime. A partner would only be entitled to a FISA if their relationship was 10 years or longer (unless the parties had children together) or the applicant’s contributions to the relationship either advanced the respondent’s career or was at the sacrifice of the applicant’s career. Subject to orders for adjustment where serious injustice is caused, there would be a cap on the time period for which maintenance could be paid (for up to five years) and a statutory formula for calculation of payments. The formula is based on the family income received during the relationship (as opposed to future earning capacity). A key focus for FISA is ensuring that partners are only entitled to FISA if their financial need is connected to the relationship. The Commission commented that if it was not, it should be the State’s responsibility to financially support that person. In 2019, the Government responded to the FISA proposal, accepting that the current PRA framework is no longer fit for purpose. It declined to give effect to the recommendations at the time but will consider them concurrently with the Law Commissions review of succession law. The Law Commission is currently reviewing submissions on succession. The Court of Appeal in Rainey v Kwok made no specific comment on the social policy of maintenance, the need for justice in maintenance orders or the Law Commission’s PRA recommendations. This despite hearing submissions on the points as comparison tools for the Court’s maintenance assessment. Will FISA work? In effect, FISA will work like the Inland Revenue’s child support scheme via a default implementation system. Like the child support scheme, FISA is recommended to have set calculation formulas that can apply immediately on separation but be adjusted by the Court if necessary to prevent injustice. In the writers opinion, the FISA system is a step in the right direction to anchor the core principle of a causal connection between a party’s needs and the obligation to support . The certainty provided by predicable eligibility characteristics (length, children, contributions – albeit with some flexibility as is necessary) is a key benefit. The predictability of the scheme also paths the way for parties to resolve their own maintenance issues without necessarily needing to use the clogged justice system or incur legal fees. The most beneficial aspect is the heightened eligibility threshold. Anecdotally, the writer knows many relationships that easily meet the de facto threshold (s2D of the PRA) but are not of such a level of seriousness where the parties commit to financially supporting one another on separation, particularly for relationships in the younger adult generation. Had the FISA scheme been in place, Mr Rainey may have avoided liability to maintain Ms Kwok. This would have been a fair result given that this was a late-in-life relationship for parties with no children together and modest means. Next steps The legal profession now eagerly awaits for the Law Commission finishing its review on succession law. With the Government’s acknowledgement that the system needs to change, it is hoped that a new system can be predictable, user friendly and, above all, only applicable in circumstances where the seriousness of the relationship justifies ongoing support. This article was published in the December 2021 edition of the New Zealand Law Journal

In New Zealand, there is a general legal presumption that once you have been in a de facto relationship for three years, relationship property is to be divided on a 50/50 basis if you separate or one of you dies. You and your partner can agree to divide your relationship property in a way that is more appropriate for your relationship by entering into a legally binding Contracting Out Agreement (also known as a “pre-nup”). The Property (Relationships) Act 1976 (“the Act”) The Property (Relationships) Act 1976 (“the Act”) sets out how relationship property is to be classified, valued and divided upon separation. The general presumption under the law is that once you have been in a de facto relationship for three years, relationship property is to be divided on a 50/50 basis unless you have entered into a legally binding Contracting Out Agreement. The question of whether or not you are in a de facto relationship is not always “black and white” as this depends on all of the circumstances of your relationship but in essence boils down to whether you are “living together in a relationship in the nature of marriage”. Sometimes, when people separate prior to being de facto for 3 years, there may already be some relationship property entitlements where there are children of the relationship or if substantial contributions have been made to the relationship, but the 50/50 presumption does not apply until you reach the “3 year mark”. However, once your relationship reaches the “3 year mark”, the Act has a retrospective effect in that all assets and liabilities acquired from the start of your relationship will become relationship property and will be divided in accordance with the Act if you do not have a Contracting Out Agreement. The Act is based on the model of a couple whose relationship commences at a young age with each partner having few assets, and together they build up assets over the course of their relationship. Many couples do not fit this model, for example if one partner is bringing significantly more assets to the relationship than the other partner. Therefore they may wish to make alternative arrangements for the division of their relationship property in the event that they separate. Contracting Out Agreements When you sign a Contracting Out Agreement pursuant the Act, you are agreeing with your partner that certain sections of the Act will not apply in the event that your relationship ends and your relationship property needs to be divided. If you and your partner do not enter into a Contracting Out Agreement, the Act will govern your relationship property division in the event of separation or death. In order for a Contracting Out Agreement to be legally binding, it must be: Recorded in writing and signed by both parties; Each party needs to have obtained independent legal advice; Each parties’ lawyer will need to certify that they have given you independent legal advice and have fully explained the effects and implications of the Agreement to you before you signed it. The benefit of entering a Contracting Out Agreement is that it will give you and your partner clarity and peace of mind on how your assets and liabilities will be divided in the event of your separation or death. Some common examples where a Contracting Out Agreement may be appropriate are: Where you and your partner are buying a home together and one of you is contributing significantly more or less than the other, and you do not want the home to be split 50/50 if you separate; Where one partner enters the relationship with significantly more assets than the other partner such as interests in Trusts, businesses or property that they wish to protect; Where an older couple chooses to live together in a pre-existing home owned by one partner solely, and that partner wants to ensure the other partner does not become entitled to a half share in that home on separation or death; Where one partner is gifted or inherits funds that they wish to protect; or Where one partner has significantly more liabilities or business risk than the other. You and your partner can enter into a Contracting Out Agreement at any point during your relationship, however we recommend doing so as early in your relationship as possible. Contracting Out Agreements are not totally ‘watertight’ but they are the best available protection from relationship property claims. It is possible for a party to apply to the Court to set aside a Contracting Out Agreement on the basis that it would cause them “serious injustice” if it was upheld. Whilst this is a high threshold to meet, it is very important to ensure that your Contracting Out Agreement is fair for each partner and their circumstances, and to review it regularly to ensure this remains the case in light of changes in your circumstances and developments in the law. The above information is intended as general advice only. If you are in a relationship and are considering whether a Contracting Out Agreement would be suitable for you and your partner, Holland Beckett’s family team are more than happy to assist. For advice on your own specific circumstances please contact one of our specialist family lawyers. We provide an obligation free online tool to provide you with further information based on your specific circumstances. Click here to get started

A testamentary guardian is appointed via a Will or Deed to “step into your shoes” as a parent when you die. A testamentary guardian is not appointed to care for the child. That is something quite different and cannot be provided for in a Will. When should you appoint a testamentary guardian and what do they do? A testamentary guardian is appointed alongside the surviving parent (usually) for input into “the big important decisions” about a child’s upbringing like education (where do they go to school), health (major medical decisions not day to day bumps and sniffles), religion, residence (which country or region do they live in, not a specific house or street), and permission to marry under the age of 18. These rights and responsibilities end when the child attains the age of 18 years or earlier if the child marries, enters a civil union, or lives with another person as a de facto partner. Why do it? It is worth considering if you have separated from your child’s other parent to ensure your views about upbringing are represented in the event of your death or if you are worried your family will be “cut off” from the child when you die. If you are still happily in a relationship it is probably not necessary to appoint a testamentary guardian as it is likely you can trust your spouse/partner to make good guardianship decisions for your children if you die. If you are worried about what happens if you both die together then you could each say in your wills that “if we both die together, we appoint X as a guardian.” If you are the sole guardian of your child (the other parent has died already) then you should definitely consider appointing a testamentary guardian. So, who does care for the kids if we die? The surviving parent would usually remain carer for the child unless unwilling or unable or unsuitable. If you have both died it is assumed that the family will rally around the child to take them in. Whomever they live with (which may be the testamentary guardian if appointed or may not be – there is no default assumption) may then file an application for a parenting order providing them day to day care together with guardianship orders if necessary. A testamentary guardian could apply for a parenting order if they wanted to contest day-to-day care or seek contact rights to the child and as they are already a guardian they would not need the leave of the Court to do so. Before an application for a parenting order can be filed, the guardian will normally have to provide evidence that he or she has sought to resolve the matter with the other guardian/s by family dispute resolution unless the circumstances are urgent. The legal test to determine a child’s care arrangements is “what is in the welfare and best interests of the child” so it depends on all the circumstances at the time. Things to remember: Only one testamentary guardian can be appointed. The consent of the person to be appointed as a testamentary guardian is not required, A person appointed as a testamentary guardian cannot decline the appointment. As a guardian of the child, the appointee could apply to the court for an order for his or her own removal. Another guardian could also apply for removal of the testamentary guardian. A testamentary guardian has the same rights and responsibilities as the living parent/guardian but only upon the death of the appointor. They have no say in the upbringing of the child prior to that parent’s death. By appointing a testamentary guardian you are not appointing somebody to care for your child if you die.

If you do not have the means to pay privately for a lawyer you may qualify for legal aid. You will need to apply to the Legal Services Agency for a legal aid grant using the appropriate form. We can assist you with these forms or you can find them here. Both Leesa Speed and Katherine Dyer are approved by the Legal Services Agency as Lead Providers for Family legal aid. To decide whether to grant you legal aid, the Legal Services Agency will consider: how much you earn before tax the value of your assets, such as house and car how many financially dependent children you have If you have a partner living with you, their finances will also be considered. See more on the New Zealand Government Website here. There are a number of other factors which affect whether or not you may be eligible for legal aid.  If you would like to discuss this further please do not hesitate to contact us.  The current Financial Thresholds are as follows: $27,393 per year for a single applicant with no dependent children. $43,380 per year for an applicant with: - 1 dependent child; or - a spouse or partner. $62,381 per year for an applicant with: - 2 dependent children; or - a spouse or partner and 1 dependent child. $70,888 per year for an applicant with: - 3 dependent children; or - a spouse or partner and 2 dependent children. $79,214 per year for an applicant with: - 4 dependent children; - a spouse or partner and 3 dependent children. $88,552 per year for an applicant with: - 5 dependent children; or - a spouse or partner and 4 dependent children. $96,745 per year for an applicant with: - a spouse or partner and 5 dependent children. More than 5 dependent children add $8,192 for each additional child.Notes: * a dependent child may not be living with you eg. he/she/they be living with someone else. * a spouse or partner is considered as someone living with you in a domestic relationship. You will need to provide proof of your income with your legal aid application. Please contact us if you would like to find out more.

What is FDR? Family Dispute Resolution (“FDR”) is a mediation service, designed to help separated couples and their families resolve disagreements regarding care of children. Attempting FDR is usually a mandatory pre-requisite before you can apply for a parenting or guardianship order in the Family Court. There are limited exceptions to this. For example, FDR is not appropriate where family violence is involved or where urgent orders are required to prevent harm or hardship to you or your child. Preparing for FDR The ‘Parenting through Separation’ course (“PTS”) is a free 4 hour course which aims to help you understand and manage the effects of separation on your child/ren. You and your ex-partner attend separately. During the course you will create a parenting plan which will help you work out what parenting arrangements could work best for you. PTS is also normally a pre-requisite before you can file proceedings in the Family Court. What to expect at FDR An impartial mediator will run the FDR session. Mediators, also known as “FDR providers” can be found on the Ministry of Justice website at: https://www.justice.govt.nz/family/care-of-children/find-a-service-to-help-with-disputes/. Once you have found a mediator, you will be required to provide details of all parties involved in the dispute. This will usually be your ex-partner, however it can also include a member of your wider family, for example a grandparent of the child/ren, if they are involved in providing care for the child/ren. Before FDR begins, the mediator will want to understand whether the dispute is suitable for FDR. They will ask you some screening questions such as: - whether you or your children have been subject to domestic violence; - whether you can fully take part in FDR. For example, the other party may live overseas or, does not wish to partake or, you may have a disability which makes it difficult for you to attend/participate; and - whether you may be benefit from preparatory counselling before attending the FDR session/s. Preparatory counselling can be helpful if you are feeling too stressed about the relationship issues to think clearly and calmly about shared care arrangements for your children. It can help you prepare for discussion you will need to have at FDR. During FDR, the mediator is there to facilitate an open discussion and to help you resolve your disputes about care of your children, including: - who they live with and when; - how changeovers are managed; - childcare arrangements (e.g. after school care and holiday care); and - other important dates like birthdays and celebrations. Guardianship issues can also be discussed, for example: - where the children go to school; - religion; - names; and - medical treatment. Lawyers are not allowed to attend FDR, although you are entitled to seek legal advice at any stage during the process. In particular, you may wish to seek legal advice before agreeing to a particular arrangement. If an agreement is reached following FDR, the mediator will write up the agreement in full. This is not a binding Court order. If, after time, you want to vary the agreement, both parties need to give their consent to the variation. It is also possible to formalise the FDR agreement by way of applying to the Family Court by consent for a Parenting Order. Conclusion FDR is often a compulsory first step in resolving parenting disputes following separation. If you would like any further advice regarding care of children and guardianship issues, please don’t hesitate to get in contact with one of our family law specialists.