Romy Tennent

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 If there is an outdated Will which provides for a previous partner and not the current partner.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 out There are a few laws surrounding wills which may surprise you. The unpleasant truth is normally discovered by those who are already grieving. Administration Act 1969 When 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 not When 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. Conclusion In 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. 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 would be happy to assist you in reaching resolution.

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

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.

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

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.