Bill to reform rules on de factos

Press, 1 August 1986, Page 28

Bill to reform rules on de factos

PA Wellington Legislation tidying up the property rights of couples in de facto relationships was brought before Parliament

Speaking to the Law Reform (Miscellaneous Provisions) Bill, the Acting Minister of Justice, Mr Caygill, said the normal rules on the division of matrimonial property did not apply to de facto relationships. But one way such couples could provide for the sharing of their property was by making a formal agreement “The difficulty with such agreements is the longstanding rule in the law of contract that the courts regard a contract

based on cohabitation as immoral and therefore contrary to public policy,” he said. The common law rule was formulated in the nineteenth century and reflected the attitude then to “illicit relationships.” That had the disadvantage of encouraging legal action if a relationship broke down.

But courts had begun to recognise property agreements as binding contracts, so long as cohabitation was not expressed to be the consideration.

The bill repealed the old contractual rule that could defeat property agreements and declared them enforceable if otherwise valid.

"It removes a discriminatory fetter on the freedom of action of de facto couples to make binding arrangements about their property,” Mr Caygill said.

The bill also amends the law to make corroboration of a mother’s evidence unnecessary in the making of a paternity order for a child.

But repeal of that requirement in paternity cases would not mean that courts would simply accept a mother’s assertions, Mr Caygill said.

Instead of corroboration being an inflexible rule, the evidence would now be weighed in each case, he said.