Essay in New Zealand Property Law : Property Relationship Act
...laws are no exceptions. Aitkin says that matrimonial property reform should not be conducted in isolation from other areas of the law and the particular social conditions that the law will regulate. Accordingly it makes sense that laws designed to curb domestic violence such as the Domestic Violence Act 1995 should interact cohesively with the PRA, as both deal in areas where domestic violence prevails. The MPA, and the Domestic Protection Act 1982 followed by the Domestic Violence Act 1995 are all reflective of increased societal intolerance of family violence. The Acts concerned reflected stronger provisions to ensure increased awareness of the adverse effects of family violence and for the perpetrators to take responsibility for their actions. The PRA therefore provided a prime opportunity to maintain this emphasis through just and equitable financial penalties that are consistent with other statutes that also seek to eliminate domestic violence. International obligations and domestic human rights laws. International treaties and conventions have had a direct influence on the types of human rights legislation adopted domestically. In recent years, the New Zealand courts have increasingly referred to international treaties and conventions and their obligations where they are interpreting a statute relevant to the particular international obligation New Zealand has undertaken. For instance in 1994 the New Zealand Court of Appeal indicated that the Minister of Immigration under the Immigration Act 1987, should have had regard to the United Nations Convention on the Rights of the Child in exercising a statutory discretion relating to a deportation order. The New Zealand Bill of Rights Act 1990(NZBORA) affirms rights and freedoms and where reasonably possible the Courts must construe a statute so that it does not infringe the NZBORA. Section 9 of the NZBORA provides the right to be free from cruel, degrading or disproportionately severe treatment or punishment. Violent behaviour is criminal behaviour, which is both cruel and degrading. Therefore it is logical that relationship property law should be consistent with the NZBORA and the various international conventions from which it is derived. Analysis of the MPA ,PRA and case law While case law shows that domestic violence has been acknowledged when considering division of matrimonial property under the MPA, the cases also show that the Act has had a significant constraining effect in making violence count in property settlement. Although rights have been extended to defacto and same sex couples the salient provisions for which domestic violence were catered for under the MPA although renumbered, remain largely unchanged under the PRA. The main sections for which domestic violence were considered were s 3 (Marriages of short duration), s 14 (exception to equal sharing: extraordinary circumstances), s 18 (contributions to the marriage – and s 18 (3) misconduct). The PRA however contains two new provisions where domestic violence may feature they are; ss 15 (economic disparity), and 15A (contributions increasing a spouse or defacto partners separate property). Neither Act though specifically mentions domestic violence per se. Due to the scarcity of case law produced under the PRA, it is contended that many case law principles and findings applied under the MPA remain relevant and can therefore be used in analysing the effects of the legislation. Exception to equal sharing - (extraordinary circumstances) : PRA section 13. Section 13 was previously s 14 of the MPA. Section 13 allows that the equal sharing presumption will not apply to relationship property if there are ‘extraordinary circumstances’ that render it ‘repugnant to justice’ to do so. In that case, the parties’ shares will be determined according to their respective contributions to the relationship as per s 18. Exceptional circumstances however may differ from those in marriage. S v S discussed earlier was decided under s 13, which despite prolonged serious assault on the wife, and also her significant contributions to the home it did not qualify as exceptional circumstances. This is in contrast to Banda v Hart that involved an unsuccessful application by the husband for equal division due to exceptional circumstances. During the marriage the wife’s tangible and intangible contributions had been clearly excessively disproportionate to those of her husband’s who’s were negative. Persistent physical violence and control by the husband accompanied by his excessive drinking of alcohol were a major feature of the relationship and two applications for protection orders against the husband were made during the marriage. The Court applied the stringent 2-stage test requiring to show that his conduct was both ‘extraordinary’ and ‘repugnant to justice’, a provision that is notoriously difficult to surmount. Moreover the Court found that his conduct was also ‘gross and palpable’ which had reduced the value of the property per s 18(3). However while the violence in this case was significant it was simply but one of a ‘combination of total circumstances’ considered under s 18 to find extraordinary circumstances. It is considered that on its own the violence was not likely to be sufficient to qualify as an ‘extraordinary circumstance’. Similarly in Ubels v Barret a case closely analogous to Banda v Hart, despite suffering from regular severe physical, sexual and psychological abuse from the husband, the violence was again encompassed as part of an overall assessment of contributions constituting ‘extraordinary circumstances’ rather than on its own. Indeed the thrust of the case ratio focused heavily on the monetary quantification of the disproportionality of the property and work that the wife had contributed. In contrast, the violence contribution only seemed to receive modest weight, albeit as a negative contribution. The regular violence and the severe beating of his wife (for which he was imprisoned for 12 months ), when they last lived together in the matrimonial home, was not deemed in itself enough to satisfy the rigorous ‘gross and palpable’ misconduct test in s 18 (3). Exception to equal sharing (Marriage of short duration) : PRA section 14. Section 14 was previously s 13 of the MPA. Section 14 inter alia basically allows for deviation from the equal sharing presumption if the spouses or partners lived together for less than 3 years. Again the parties’ shares will be determined according to their respective contributions to the relationship as per s 18. In Gilchrist v Gilchrist , Judge Inglis QC treated as a marriage of short duration a marriage of 3 years 6 months which had been punctuated by the husbands violence and which had ended by final orders under the Domestic Violence Act 1995. This allowed for unequal division in favour of the wife. A major reason for the decision was the husbands unacceptably violent behaviour creating a situation in which the wife’s departure was delayed longer than the 3 year threshold , which following the test in Martin V Martin rendered it just in all the circumstances to treat it as a marriage falling within s 13 (3) now ss 2E and 14 of the PRA. Other factors, such as financial and domestic contributions also weighed in the wife’s favour. Judge Inglis noted that he would have if necessary found for the wife under the alternative basis for unequal sharing under s 14. Of significance was Judge Inglis’ dicta where he states: “What then, was the true quality of the marriage in the present case… it was marked by physical and psychological abuse… sufficient to produce psychiatric dysfunction in the wife which required medical treatment…the Domestic Violence Act, s 5 makes clear “unacceptable” behaviour from which the victim is entitled to effective protection. [W]ithin the context of a marriage relationship domestic violence in any of its forms to a degree which will justify the making of a protection order amounts to a repudiation and negation by the violent party amounts to a repudiation and negation by the violent party of a fundamental feature of the marriage commitment.” Judge Inglis also found that the violence satisfied the rigorous ‘gross and palpable’ arm of the test’ in s 18(3) concerning misconduct as negative contributions, but it fell short of affecting the value of the matrimonial property. Thus the violence had harmed the quality of the marriage to the extent rendering it a marriage of short duration, but not sufficiently enough that it had legally affected the husband’s contributions to the marriage relationship. The emphasis of this provision promoting the value of property over that of people, is difficult to reconcile with the Acts principles of justice and equality. Misconduct : Property Relationship Act section 18 A. Section 18A was previously s 18 (3) of the MPA. Section 18A essentially allows that the Court may not take any misconduct of a spouse or defacto partner into account, whether to diminish or detract from the positive contributions of that person or otherwise, unless their conduct has been gross and palpable and has significantly affected the extent or value of the relationship property. As previously discussed, section 18A - (s 18(3 MPA)) has been used in conjunction with ss 13 (s 14 MPA) and 14 (s13 MPA)) to not only uphold the violence as misconduct, but also to allow for the Court to take the misconduct into account both in considering if the s 14 test has been satisfied, and if so then assessing the contributions under s 18. In Wright v Graham Moss J, declined to deviate from the equal sharing presumption in favour of the wife despite evidence of “gross and repeated violence by Mr Graham over an extended period.” She was subject to sexual and physical violence such as being regularly sodomised and forced to have oral sex, bruising and black eyes and the husband excessively drank at the hotel six or seven days a week spending $100 per week on alcohol. In order for his contributions to be deemed negative, s 18(3) misconduct that was gross and palpable had to be proven that had significantly affected the extent or value of the matrimonial property. Moss J found that the husbands violent conduct was gross and palpable, but because of his contributions it fell short of affecting the value of the property. In Watson v Watson (No 2) s 18 A (s 18(3) MPA) on its own was used to show that domestic violence as misconduct was recognised. The level of violence suffered from the wife in the home was severe enough to make her fearful of returning home on occasions as well as incapacitating her from maintaining full-time work. Additionally the Court recognised her extra efforts in nursing the husband during illness despite the violence as increasing her contributions. In his analysis Green J referred to comments by Boshier J made in a paper to the 1998 Family Law Conference as to greater recognition of violence and its effects on division of matrimonial property; he stated: “ It is contradictory to allow for some forms of legal misconduct, such as fraud, to count during property division, while violent criminal conduct has no such effect. If violence is ignored in property settlement it leaves the perpetrator with the same rights to marital property as anyone else.” Judge Boshier further stated that violence within the relationship could increase the value of the contributions of the non-violent partner. Likewise, Green J preferred to regard the violence as increasing the wife’s positive contributions rather than holding it to be a negative contribution against the husband. In refuting the negative contributions approach to domestic violence, and referring to the leading Australian case Kennon v Kennon, Green J, had regard to the fear of ‘opening the floodgates’ and returning to the debilitating principle of fault. However treating domestic violence and other non-financial conduct under the increased contributions approach is problematic. In Pickering v Pickering the High Court found that a s 18 A fraud conviction constituted negative contribution against the husband but was not a sufficient enough of a gross disparity to amount to extraordinary circumstances. This was later quashed in the Court of Appeal and the wife’s contributions were deemed as essentially one-way positive contributions. The increased contribution approach shifts the focus exclusively on the impact of the violence on the victims contribution which places the onus on the victim to prove that not only the violence occurred but that it had a discernible impact on his or her role as homemaker and parent. Conversely the perpetrator is not required to show that domestic violence did not have an adverse impact upon his or her contribution. The increased contributions approach shows a lack of balance in the way that domestic violence is treated, particularly in contrast to misconduct of a financial nature such as fraud. These cases show that the courts place greater weight on how behaviour affects property rather than its impact on the quality of the relationship. New Provisions: ss15 and 15A and misconduct under s 18A. It remains to be seen how domestic violence under the head of misconduct will impact on s 15 (economic disparity) and s 15A (contributions increasing a spouse or defacto partners separate property). Section 18A is ostensibly limited to issue of contribution during the relationship whereas the nature of the inquiry under ss 15(2) (c) and 15A(2)(c) is geared towards matters of the future. Issues of domestic violence which occurred during the course of the relationship therefore will not be relevant unless they can be shown to have a continuing effect after the relationship has ended. While the new provisions...