1. Term 2, Week 3 Revision of Chapter 3
NEW ZEALAND LAW SOCIETY LEGAL EXECUTIVE DIPLOMA LITIGATION LAW AND PRACTICE
Term 2, Week 3
Revision of Chapter 3
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2. Civil Union Act 2003
Provides way for two people to solemnise their relationship
Applies to same-sex and opposite sex couples
Need to be over 16 or have guardians written consent
Cannot be in prohibited degrees of relationship
Cannot currently be married or in civil union with someone else (except marriage -> civil union)
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3. Family Court Procedure
Make parties/children feel at ease
Usual Court rules and procedure simplified/relaxed/more informal
Duty on lawyers to promote reconciliation and where that is not possible, conciliation
Counselling (relationship and parenting) and mediation available
Can refuse to attend counselling where there has been domestic violence
Mediation now predominantly non-Judge lead = quicker to get one allocated, cheaper, frees up judicial time
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4. Dissolution
Only ground = irreconcilable breakdown of relationship as evidenced by 2 years living apart
Demonstrate by separation agreement, separation order or other evidence (affidavit)
Permitted 3 month reconciliation period within the 2 years
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5. Separation Agreement May record:
Date of separation
Maintenance for former spouse/partner and any children
Care and contact arrangements
Division of relationship property
Quick, relatively cheap and involves “buy-in” so more likely to be complied with
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6. Separation Order Involves an application to Court Documents required:
Notice of Application for Separation Order
Notice to Respondent
Affidavit in Support
Family Court Information Sheet
Need to show a state of disharmony such that it would be unreasonable to require parties to continue living together
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7. Dissolution Can be a joint or unilateral application
One party must be domiciled in NZ
Different forms for each type of application
Documents required:
Application for Order for Dissolution
Affidavit in Support (attach certified copy of marriage certificate)
Family Court Information Sheet
File the originals and a service copy with the Court, pay the filing fee and note the hearing date
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8. Dissolution continued
For unilateral applications only, uplift the service copy, photocopy the Notice to Respondent (to attach to the Affidavit of Service) and arrange for service
Must serve at least 21 days before hearing date (to enable sufficient time to file a defence if desired)
Ideal but rarely practicable to get respondent to sign Acknowledgement of Service
Alternatively prepare Affidavit of Service
Private hearing
Order for dissolution
See flowchart on page 55
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9. Substituted Service
Used where documents have not been able to be personally served after reasonable efforts/enquiries
Documents required:
Application for Order for Substituted Service
Affidavit in Support
Draft Order for Substituted Service
File the documents, receive directions from Court and attempt service again
Service may be authorised on family member, friend or via advertisement in newspaper (Facebook?)
Court may dispense with service in extreme cases
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10. Property (Relationships) Act 1976
Sets out rules for division of property whether married, civil union or de facto
Each partner has equal status
Non-financial contributions same value as financial ones
Equal contribution to relationship so equal share of property
Fault by either party is irrelevant unless extreme circumstances
Resolve issues as quickly, cheaply and simply as is consistent with justice
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11. PRA 1976 continued
“Relationship property” = property brought into or acquired during the relationship, ie family home, family chattels, debts, insurance, superannuation, intermingled gifts and inheritances
Separate property = separate property but may have to be divided if other parties’ efforts contributed to increase in value
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12. PRA 1976 continued
In general you take out what you put in to a de facto relationship of less than 3 years duration (unless child of relationship or one party made substantial contribution)
Court can depart from presumption of equal sharing if there are extraordinary circumstances which would make that repugnant to justice
Court can order lump sum payment to address economic disparity in income and living standards
Court will look at likely earning capacity of each party and any childcare responsibilities
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13. PRA 1976 continued
If partner dies, surviving spouse/civil union partner can choose whether to take under PRA rules or under will/intestacy provisions
Can contract out of the default provisions of the PRA (section 21 agreement) but must be in writing and both parties must have independent legal advice
Documents required:
Notice of Application for Order under PRA
Affidavit of Assets and Liabilities
Affidavit in Support
Family Court Information Sheet
Affidavit of Service
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14. Next Week Revision of remainder of Chapter 3 and also 4
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