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DDP97

Developments in Domestic Property

NZ $33.00
incl GST
Author(s): Deborah Hollings, Professor Julie Maxton
Published: 10 November, 1997
 

Introduction


The law of domestic property is becoming increasingly complex and is an expanding area of practice for lawyers. This is due, in general, to the increasing rates of separation and the trend towards self-employment and accumulation of assets centered around the family unit. Lawyers are seeing a multiplicity of domestic property situations involving difficult private company ownership issues, trusts and purported agreements all affecting the ownership and possible claims in respect of property.

This booklet attempts to address these issues broadly. It necessarily throws into sharp focus the contrast between the protection for couples who are married and thus subject to the relatively clear regime of the Matrimonial Property Act 1976 and those who are reliant on the developing common law to give them a satisfactory settlement when a de facto union involving property comes to an end.

This booklet deals with de facto issues in chapter 2 and gives an overall framework for practitioners in this difficult aspect of domestic property. This area is still developing, is relatively new and is still not an area with which all domestic property lawyers are familiar. There is a description of the developments of the law in this area so that in advising clients, lawyers can put their advice in the framework of the emerging common law.

Chapter 3 deals with trust law that is applicable to both married and non-married couples. The end of this chapter deals with the specific statutory sections that may assist married couples, in particular s 182 of the Family Proceedings Act 1980, s 44 of the Matrimonial Property Act 1976 and s 33 of the Matrimonial Property Act 1976.

Chapters 4, 5 and 6 deal specifically with issues pursuant to the Matrimonial Property Act. Chapter 4 attempts to give a general outline of possible mechanisms available to protect property owning spouses, and on the ‘flip-side’ of the coin, what advice should be considered when advising non-property owning spouses. This chapter particularly deals with the issues that arise prior to dispute and separation.

Chapter 5 summarises the developments in latest cases in respect of matrimonial property dealing particularly with issues of private company shares, post-separation credits, valuation issues, the new case on the effect of a s 42 notice of claim of interest, costs and debts.

Chapter 6 is a general summary of Z v Z, the “future earnings” case and discusses the ramifications and facts of that decision.

Chapter 7 discusses future issues in regard to domestic property. It raises the issue of the possibility of legislation for de facto couples and the real difficulties in the area of defining what a domestic relationship is. In regard to matrimonial property issues of reinterpretation of ss 14 and 15 of the Act; economic provision for children and issues of proceedings at common law between spouses particularly in respect of fiduciary duties are discussed. The issue of the need for a High Court family division is also raised.

As authors, we hope that this booklet will particularly help practitioners to focus on the need for clients to be advised of the necessity of seeing their legal advisors prior to entering domestic relationships and the need to seek legal advice as property is acquired.

The second major theme of the booklet is our view that practitioners in this area, should be prepared to consider challenging some current preconceptions in an attempt to use the law to achieve a “just division” of property when domestic relationships end.

 

Content outline

  • De facto property
  • Trusts
  • Matrimonial property: advice prior to dispute and separation
  • Matrimonial property: developments and latest cases
  • Z v Z (1996) 15 FRNZ 88 - the "future earnings" case
  • Issues for the future
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