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Time to reconsider the ‘no fault’ division of property to protect victims of domestic violence

Spouses who have to pay hundreds of thousands of dollars to abusive ex-partners if they stay in their family home after divorce say the law is retraumatizing domestic violence victims.

Currently, the Property (Relationships) Act 1976 does not have an explicit provision for domestic abuse when considering the division of relationship property. New Zealand’s position for division of property is equal sharing and the no-fault rule. However, this grossly negates the context in which the breakdown of the relationship occurred and what is safer and best for parties in reality. The PRA is now 45 years old and is up for review by the Law Commission to decide whether the rules contained in the Act are still appropriate for New Zealand’s society. One of the changes which I believe is necessary is giving family violence a greater weight-bearing on the division of property.

The Law Commission Report states that equal sharing remains appropriate in NZ for three reasons.

  1. Equal sharing reflects the values we should attribute to relationships.

  2. Equal sharing is familiar to the New Zealand public.

  3. Easy to understand and simple to apply. Makes the law predictable and allows partners to easily understand their rights.

While these are important aspects of the law and it is especially important to make the law clear and easy to understand for parties, family violence in New Zealand is an incredibly pressing issue that affects 1 in 3 women (35%) in their lifetime. When psychological/emotional abuse is included, 55% have experienced abuse in their lifetime. Furthermore, The New Zealand Violence against women study found that 87% of women who had experienced violence from a partner had not reported it to the police. While the PRA is not the area of law that should be used to stop domestic violence, the Act should be updated to reflect the statistics and lend support through enacting provisions that make transitioning out of an abusive relationship easier. There is a growing awareness that family violence has ongoing economic consequences for the victim of any violence, and by not penalising violence in the division, the law effectively communicates the message that the behaviour has no impact on the contributions made to the marriage by each spouse.

The court may refuse to order equal sharing of relationship property where it considers that there are ‘extraordinary circumstances’ that make equal sharing of property or money ‘repugnant to justice.’ However, the application of this exception is narrow due to the strict wording and is an incredibly high threshold to meet. It requires that the situation is something out of the ordinary and, the longer the relationship is, the harder is it to claim under this provision. This provision has not provided many successful cases under domestic abuse as unfortunately it is not an uncommon situation in New Zealand and often people stay in abusive relationships for a long time due to fear of repercussions and/or their inability to support themselves outside of it.

There are many valid concerns are surrounding editing the PRA to be in line with government initiatives to curtail violent behaviour. These include definitions of family violence and providing proof of it in court. It could also potentially breach the double jeopardy rules in the Bill of Rights, where an aggressor had already been punished through the criminal courts. Furthermore, the family court isn’t set up for dealing with family violence in divorce issues therefore, there are concerns the Family Court might struggle with delays. These are all important considerations which the law commission looked into in-depth in the report. However, the issue is important enough to New Zealand society and the statistical context of family violence in the community that new systems should be put in place to accommodate a change to progress towards a more understanding system of property division.

The entire antithesis behind the PRA is to reward equal contributions to the relationship and the property. Domestic violence directly contradicts that principle as it does nothing to contribute positively to the relationship. It negates the idea of equality within the relationship and therefore, should be considered more heavily when dividing relationship property. Abuse should not have to be ‘extraordinary’ or ‘repugnant to justice’ to qualify under the provision, this only further reinforces the power imbalance within the relationship and potentially sets up unsafe post-separation situations for the couple.


Emma Abbot

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