Marriage and property

Press, 29 November 1976, Page 16

Marriage and property

This is the fifth of a series of articles, prepared by members of the New Zealand Legal Association, on aspects of the law of interest to the community. The articles, written for laymen, are the views of the authors and the conclusions reached in them may be subject to changes by legislation or interpretation. The articles appear on this page on Mondays.

In 1975 the Labour Government introduced to Parliament the Matrimonial Property Bill. The new bill promoted considerable intere . because it seemed that tl. long-awaited review of matrimonial property legislation was about to take place. Unfortunately, the new act will probably not come into effect for some time vet. What of the law as it stands at oresent?

Generally speaking there are no hard and fast rules as to who takes any particular item of property when a marriage breaks up, be it land or any other type of property. Registration in the name of one spouse usually does not prevent the other spouse from establishing a claim to a share in that property. When assessing whether a spouse has a claim to a particular item of property, the Court has regard to the respective contributions of either party. These are not confined to monetary contributions but include amongst other things contributions as a housewife and mother. The fact that a husband and wife are registered Jointly as proprietors of a piece of property does not necessarily mean that the piece of property will be shared equally in the event of a dispute arising between spouses. Even registration of a home as a joint family home does not necessarily mean that the parties will share the proceeds of sale of that home eoualty should a dispute arise. However, the Court might find in these circumstances that there was an expressed intention between the husband and the wife that the property would be divided equally if ever sold, and this can have an important effect on what sort of order is made. One of the problems

associated with the present legislation is the difficulty of calculating accurately in advance what share will be awarded to a husband or wife. Should a property dispute proceed to a Court hearing the Judge or Magistrate has wide discretionary powers to resolve the dispute so as to do justice to both parties. The new matrimonial property legislation which is before Parliament seeks to do away with some of the uncertainties in the present legislation by dividing matrimonial property into two classes, namely, domestic assets and general assets. Domestic assets (which

include the matrimonial home and the family chattels) are to be shared equally between the spouses except in certain specified circumstances and general assets are to be a matter of agreement between the husband and the wife. If agreement cannot be i -ched over general assets then the dispute will be dealt with in the manner provided for by the present legislation, namely, by looking at the respective contributions of both husband and wife to the particular asset in question.

A husband and wife may contract out of the provision of the new legislation by entering into an agreement as to the status, ownership and division of their property. Special requirements relating to such agreements are prescribed in the new bill. It should be stressed that this P iragraph deals with the situation as it may be if the bill is passed as law. At the moment the bill is of course not law.