Matrimonial property law ‘extraordinarily difficult’

Press, 15 October 1976, Page 12

Matrimonial property law ‘extraordinarily difficult’

By a special correspondent of the NZPA in London

New Zealand’s Matrimonial Property Act was “extraordinarily difficult to construe,” a British Law Lord said in a Privy Council judgment this week.

Lord Simon of Glaisdale said that the act, passe ’ in 1963 and amended in 1968, had evoked a great diversity of judicial opinion. But he said that the reasons why a wife’s performance of ordinary domestic duties were to be regarded as contributions to the matrimonial home applied equally to other assets. The difference was that the law said the Court must consider them as regards the matrimonial home but only that it may consider them concerning other assets, he said.

The Privy Council’s Judicial Committe, in a reserved judgment, allowed an appeal by Dorothy Haldane arising in proceedings she brought under the act against her former husband, George Christopher Haldane. The case raised the question of the extent to which Mrs Haldane was entitled to a share in assets vested in Mr Haldane, a Hastings farmer.

The parties v.vre married in December, 1940, when they were both 19, later living fn a house built by Mr Haldane’s parents on a farm of 112 acres near Hastings. The farm was transfe-red to Mr Haldane by his father. The couple finally parted in June, 1969. The Privy Council was told that between the decisions of the New Zealand Supreme Court and the Court of Appeal in Mrs Haldane’s property claim the parties had been divorced. The New Zealand Chief Justice (Sir Richard Wild) in the the Supreme Court ordered that there should be vested in Mrs Haldane a one-quarter share of the last lot of the farm property remaining in Mr Haldane’s ownership. In addition he

ordered him to pay her $4OOO. Lord Simon said the total value of the assets thus transferred to the wife was $19,000 out of the husband’s assets worth $118,500.

The Court of Appeal, allowing an appeal by Mr Haldane, by a majority reduced the order in her favour to $5OOO, that representing the amount to be ascribed to her dor jstic services in respect of the former matrimonial home. Lord Simon said that the crucial findings of the Chief Justice were that the value of the husband’s assets would not have increased as much as they did without the husband’s work, but that the fact that he did that work was contributeu to by the wife’s services and management and her general contribution as a wife and mother.

Lord Simon said that the marriage lasted some 29 years, the wife having borne five children within seven years. She now had no home, no sayings, and no assets. She was obliged to live with one or other of her children. She had half the income from a small trust fund established by her mother-in-law and a maintenance order of $5O a week. The husband was living apart.

The Judicial Committee were entirely in agreement with the Court of Appeal that the act did not institute any formal regime of community of property. The central issue, however, was whether a wife’s contribution was in truth a limiting factor or whether it was merely one of the matters which the Court might or must consider.

A wife’s performance of domestic duties in the matrimonial home was regarded by the legislature as a contribution to the matrimonial home, Lord Simon said.

Once this was accepted, answers to other difficult questions of construction became clearer, the reasons applying equally to assets other than the matrimonial home.

As regard such assets, the discretion was quite unlimited apart from any property lying outside the jurisdiction of the Court.

The conclusion that performance by a wife of ordinary domestic duties in the matrimonial home was intended by the legislature to fall for consideration as a contribution to the home — and the inference that it might also fall for consideration as a contribution to assets other than the home — enabled a further question of construction to be answered.

It meant that, apart from such assets as fell by their nature outside the act and apart from the necessary separate consideration of the matrimonial home and any other assets, there could be

no justification or foundation for an "asset by asset” approach. The final order of the Chief Justice seemed to the Judicial Committee a just one and it had been agreed that if his judgment was substantially to be reinstated the most convenient form of order would be for Mr Haldane to execute a charge for $19,000 in favour of the wife over his property generally. The Judicial Committee set aside the decision of the Court of Appeal and remitted the matier to the Supreme Court to vary accordingly the order made by the Chief Justice. Mr Haldane was directed to pay costs of both the Privy Council appeal and of the appeal in New Zealand.