Family Proceedings Amendment Act 2001

Family Proceedings Amendment Act 2001

Public Act2001 No 7
Date of assent3 April 2001

Note

This Act is administered in the Ministry of Justice and the Department of Courts.


The Parliament of New Zealand enacts as follows:

1 Title
  • (1) This Act is the Family Proceedings Amendment Act 2001.

    (2) In this Act, the Family Proceedings Act 1980 is called the principal Act.

2 Commencement
  • This Act comes into force on 1 February 2002.

3 Interpretation
  • Section 2 of the principal Act is amended by repealing the definitions of family chattels and matrimonial home, and inserting, in their appropriate alphabetical order, the following definitions:

    family chattels has the meaning given to it by section 2 of the Property (Relationships) Act 1976

    family home has the meaning given to it by section 2 of the Property (Relationships) Act 1976.

4 New section 13 substituted
  • The principal Act is amended by repealing section 13, and substituting the following section:

    13 Mediation conference
    • (1) Where any of the following applications has been made in a Family Court, either party to the proceedings, or a Family Court Judge, may ask the Registrar of the Court to arrange for a mediation conference to be convened:

      • (a) an application for a separation order:

      • (b) an application for a maintenance order:

      • (c) an application by 1 parent of a child against the other parent for an order for the custody of, or access to, the child.

      (2) On receiving a request under subsection (1), the Registrar must—

      • (a) appoint a time and place for the holding of a mediation conference in accordance with section 14; and

      • (b) by letters sent by post to each of the parties to the application, inform them of the time and place of the mediation conference and request them to attend.

      (3) The time appointed under subsection (2)(a) must be as soon as reasonably practicable.

5 Power of Chairman to make consent orders
  • Section 15(1) of the principal Act is amended by repealing paragraphs (c) and (d), and substituting the following paragraphs:

    • (c) a maintenance order; or

    • (d) the possession or disposition of property under the Property (Relationships) Act 1976.

6 New heading to Part 6 substituted
  • The principal Act is amended by repealing the heading to Part 6, and substituting the following heading:

    Maintenance of spouses and de facto partners

7 New section 60 substituted
  • The principal Act is amended by repealing section 60, and substituting the following section:

    60 Interpretation
    • (1) In this Part, unless the context otherwise requires, de facto partner and de facto relationship have the same meaning as in section 2 of the Property (Relationships) Act 1976.

      (2) In this Part, unless the context otherwise requires, child of the de facto relationship,—

      • (a) means a child of both de facto partners; and

      • (b) includes, in relation to any proceedings under this Part, a child (whether or not a child of either de facto partner) who was a member of the family of the de facto partners at the time when they ceased to live together or at the time immediately before the institution of the proceedings, whichever occurred first.

      (3) In this Part,—

      • (a) a reference to a marriage includes a reference to a void marriage; and

      • (b) a reference to the dissolution of a marriage includes a reference to an order declaring a marriage to be void ab initio.

      Compare: 1963 No 71 s 48; 1968 No 62 s 35(3).

8 New heading and sections 63 to 66 substituted
  • The principal Act is amended by repealing sections 63 to 66, and the heading immediately before section 63, and substituting the following heading and sections:

    Maintenance of spouses and de facto partners

    63 Maintenance during marriage
    • (1) During a marriage, each party is liable to maintain the other party to the extent that such maintenance is necessary to meet the reasonable needs of the other party, where the other party cannot practicably meet the whole or any part of those needs because of any 1 or more of the circumstances specified in subsection (2).

      (2) The circumstances referred to in subsection (1) are as follows:

      • (a) the ability of the parties to be or to become self-supporting, having regard to—

        • (i) the effects of the division of functions within the marriage while the parties are living together or lived together:

        • (ii) the likely earning capacity of each party:

        • (iii) any other relevant circumstances:

      • (b) the responsibilities of each party for the ongoing daily care of any minor or dependent children of the marriage after the parties ceased to live together:

      • (c) the standard of living of the parties while they are living together or lived together:

      • (d) any physical or mental disability:

      • (e) any inability of a party to obtain work that—

        • (i) it is reasonable in all the circumstances for that party to do; and

        • (ii) is adequate to provide for that party:

      • (f) the undertaking by a party of a reasonable period of education or training designed to increase that party's earning capacity or to reduce or eliminate that party's need for maintenance from the other party, where it would be unfair, in all the circumstances, for the reasonable needs of the party undertaking that education or training to be met immediately by that party—

        • (i) because of the effects of any of the matters set out in paragraphs (a)(i) and (b) on the potential earning capacity of that party; or

        • (ii) because that party has previously maintained or contributed to the maintenance of the other party during a period of education or training.

      (3) Except as provided in this section, neither party to a marriage is liable to maintain the other party during the marriage.

      Compare: 1968 No 62 ss 27, 30, 31, 32

    64 Maintenance after marriage dissolved or de facto relationship ends
    • (1) Subject to section 64A, after the dissolution of a marriage or, in the case of a de facto relationship, after the de facto partners cease to live together, each spouse or de facto partner is liable to maintain the other spouse or de facto partner to the extent that such maintenance is necessary to meet the reasonable needs of the other spouse or de facto partner, where the other spouse or de facto partner cannot practicably meet the whole or any part of those needs because of any 1 or more of the circumstances specified in subsection (2).

      (2) The circumstances referred to in subsection (1) are as follows:

      • (a) the ability of the spouses or de facto partners to become self-supporting, having regard to—

        • (i) the effects of the division of functions within the marriage or de facto relationship while the spouses or de facto partners lived together:

        • (ii) the likely earning capacity of each spouse or de facto partner:

        • (iii) any other relevant circumstances:

      • (b) the responsibilities of each spouse or de facto partner for the ongoing daily care of any minor or dependent children of the marriage or (as the case requires) any minor or dependent children of the de facto relationship after the dissolution of the marriage or (as the case requires) the de facto partners ceased to live together:

      • (c) the standard of living of the spouses or de facto partners while they lived together:

      • (d) the undertaking by a spouse or de facto partner of a reasonable period of education or training designed to increase the earning capacity of that spouse or de facto partner or to reduce or eliminate the need of that spouse or de facto partner for maintenance from the other spouse or de facto partner if it would be unfair, in all the circumstances, for the reasonable needs of the spouse or de facto partner undertaking that education or training to be met immediately by that spouse or de facto partner—

        • (i) because of the effects of any of the matters set out in paragraphs (a)(i) and (b) on the potential earning capacity of that spouse or de facto partner; or

        • (ii) because that spouse or de facto partner has previously maintained or contributed to the maintenance of the other spouse or de facto partner during a period of education or training.

      (3) For the purposes of subsection (2)(a)(i), if the marriage was immediately preceded by a de facto relationship between the husband and wife, the effects of the division of functions within the marriage include the effects of the division of functions within that de facto relationship.

      (4) Except as provided in this section and section 64A,—

      • (a) neither party to a marriage is liable to maintain the other party after the dissolution of the marriage:

      • (b) neither party to a de facto relationship is liable to maintain the other de facto partner after the de facto partners cease to live together.

      Compare: 1963 No 71 ss 43, 44

    64A Spouses or de facto partners must assume responsibility for own needs within reasonable time
    • (1) If a marriage is dissolved or, in the case of a de facto relationship, the de facto partners cease to live together,—

      • (a) each spouse or de facto partner must assume responsibility, within a period of time that is reasonable in all the circumstances of the particular case, for meeting his or her own needs; and

      • (b) on the expiry of that period of time, neither spouse or de facto partner is liable to maintain the other under section 64.

      (2) Regardless of subsection (1), if a marriage is dissolved or, in the case of a de facto relationship, the de facto partners cease to live together, 1 spouse or de facto partner (party A) is liable to maintain the other spouse or de facto partner (party B) under section 64, to the extent that such maintenance is necessary to meet the reasonable needs of party B if, having regard to the matters referred to in subsection (3),—

      • (a) it is unreasonable to require party B to do without maintenance from party A; and

      • (b) it is reasonable to require party A to provide maintenance to party B.

      (3) The matters referred to in subsection (2) are as follows:

      • (a) the ages of the spouses or de facto partners:

      • (b) the duration of the marriage or de facto relationship:

      • (c) the ability of the spouses or de facto partners to become self-supporting, having regard to—

        • (i) the effects of the division of functions within the marriage or de facto relationship while the spouses or de facto partners were living together:

        • (ii) the likely earning capacity of each spouse or de facto partner:

        • (iii) the responsibilities of each spouse or de facto partner for the ongoing daily care of any minor or dependent children of the marriage or (as the case requires) any minor or dependent children of the de facto relationship after the dissolution of the marriage or (as the case requires) after the de facto partners ceased to live together:

        • (iv) any other relevant circumstances.

      (4) If the marriage was immediately preceded by a de facto relationship between the husband and wife,—

      • (a) for the purposes of subsection (3)(b), the de facto relationship must be treated as if it were part of the marriage; and

      • (b) for the purposes of subsection (3)(c)(i), the effects of the division of functions within the marriage include the effects of the division of functions within that de facto relationship.

    65 Assessment of maintenance payable to spouse or de facto partner
    • (1) This section sets out the matters that a Court must have regard to in determining the amount payable,—

      • (a) in the case of a marriage, by 1 spouse for the maintenance of the other spouse (whether during the marriage or after its dissolution):

      • (b) in the case of a de facto relationship, by 1 de facto partner for the maintenance of the other de facto partner after the de facto partners cease to live together.

      (2) The matters that the Court must have regard to are as follows:

      • (a) the means of each spouse or de facto partner, including—

        • (i) potential earning capacity:

        • (ii) means derived from any division of property between the spouses or de facto partners under the Property (Relationships) Act 1976:

      • (b) the reasonable needs of each spouse or de facto partner:

      • (c) the fact that the spouse or de facto partner by whom maintenance is payable is supporting any other person:

      • (d) the financial and other responsibilities of each spouse or de facto partner:

      • (e) any other circumstances that make 1 spouse or de facto partner liable to maintain the other.

      (3) In considering the potential earning capacity of each spouse or de facto partner under subsection (2)(a)(i), the Court must have regard to the effects of the division of functions within the marriage or the de facto relationship while the spouses or de facto partners were living together.

      (4) For the purposes of subsection (3), where the marriage was immediately preceded by a de facto relationship between the husband and wife, the effects of the division of functions within the marriage include the effects of the division of functions within that de facto relationship.

      (5) In considering the reasonable needs of each spouse or de facto partner under subsection (2)(b), the Court may have regard to the standard of living of the spouses or de facto partners while they were living together.

      Compare: 1963 No 71 ss 43, 44; 1968 No 62 ss 27, 30, 31, 32

    66 Relevance of conduct to maintenance of spouses or de facto partners
    • (1) The Court may have regard to the matters set out in subsection (2) in considering,—

      • (a) in the case of a marriage, the liability of 1 spouse to maintain the other spouse, and the amount of the maintenance, whether during the marriage or after its dissolution:

      • (b) in the case of a de facto relationship, the liability of 1 de facto partner to maintain the other de facto partner, and the amount of the maintenance, after the de facto partners cease to live together.

      (2) The matters referred to in subsection (1) are as follows:

      • (a) conduct of the spouse or de facto partner seeking to be maintained that amounts to a device to prolong his or her inability to meet his or her reasonable needs:

      • (b) misconduct of the spouse or de facto partner seeking to be maintained that is of such a nature and degree that it would be repugnant to justice to require the other spouse or de facto partner to pay maintenance.

      Compare: 1968 No 62 s 28.

9 New sections 70 to 70B substituted
  • The principal Act is amended by repealing section 70, and substituting the following sections:

    70 Order for maintenance after marriage dissolved or de facto relationship ends
    • (1) A Family Court may make an order under subsection (2)—

      • (a) on or at any time after the making of an order dissolving a marriage:

      • (b) at any time after a de facto relationship ends.

      (2) The Court may do the following under this section:

      • (a) order either party to the proceedings, or the personal representative of either party, to pay to the other party for such term as the Court thinks fit (but not exceeding the life of the other party) such periodical sum towards the maintenance of the other party as the Court thinks fit:

      • (b) make any other order referred to in section 69(1), either instead of or in addition to an order under paragraph (a).

      (3) Section 69(2) applies to an order under this section for the payment of a lump sum.

      (4) In this section, a reference to an order dissolving a marriage includes a reference to a decree or order or legislative enactment recognised in New Zealand by virtue of section 44, as if that decree or order or legislative enactment were an order of a court of competent jurisdiction in New Zealand.

      (5) This section is subject to sections 61, 70A, 70B, and 71.

      Compare: 1963 No 71 s 40

    70A Effect of entering into new marriage or de facto relationship
    • (1) The Court may not make an order in proceedings under section 70—

      • (a) in favour of a party who is seeking maintenance from a spouse to whom they were married, if that party has married someone else or has entered into a de facto relationship with someone else:

      • (b) in favour of a party who is seeking maintenance from a de facto partner with whom they were living in a de facto relationship, if that party has entered into a de facto relationship with someone else, or has married someone else.

      (2) The orders specified in subsection (3) cease to have effect if,—

      • (a) in the case of an order made in favour of a party against a spouse to whom they were married, that party has married someone else or has entered into a de facto relationship with someone else:

      • (b) in the case of an order made in favour of a party against a de facto partner with whom they were living in a de facto relationship, that party has entered into a de facto relationship with someone else, or has married someone else.

      (3) The orders referred to in subsection (2) are as follows:

      • (a) an order made under section 70, other than an order referred to in section 69(1)(c):

      • (b) any order made under section 99 varying or extending an order to which paragraph (a) applies.

      (4) Subsection (2) is subject to any agreement by the parties to the contrary.

      Compare: 1963 No 71 s 40

    70B Restrictions on maintenance orders in favour of de facto partners
    • (1) This section applies to a de facto relationship that is a relationship of short duration as defined in section 2 of the Property (Relationships) Act 1976.

      (2) If this section applies to a de facto relationship, the Court cannot make an order under section 70 in favour of a de facto partner to that relationship unless—

      • (a) the Court is satisfied—

        • (i) that there is a child of the de facto relationship; or

        • (ii) that the de facto partner seeking the order has made a substantial contribution to the de facto relationship; and

      • (b) the Court is satisfied that failure to make the order would result in serious injustice to that de facto partner.

      (3) In subsection (2)(a)(ii), contribution has the same meaning as it has in section 2 of the Property (Relationships) Act 1976.

10 Application for maintenance order in favour of unmarried parent
  • The heading to section 79 of the principal Act is amended by omitting the words in favour of unmarried parent, and substituting the words against natural parent.

11 Power of Family Court to make maintenance orders in favour of unmarried parent
  • The heading to section 80 of the principal Act is amended by omitting the words in favour of unmarried parent, and substituting the words against natural parent.

12 Maintenance order in favour of unmarried parent
  • (1) Section 81 of the principal Act is amended by repealing subsection (3), and substituting the following subsection:

    • (3) Unless an order under this section expires earlier, the order ceases to have effect if the person in whose favour it is made subsequently marries or enters into a de facto relationship.

    (2) The heading to section 81 of the principal Act is amended by omitting the words in favour of unmarried parent, and substituting the words against natural parent.

13 Interim maintenance
  • Section 82(1) of the principal Act is amended by inserting, after the words wife or husband, the words or de facto partner.

14 Conduct of proceedings
  • Section 159 of the principal Act is amended by omitting from subsections (1) and (4) the expression Matrimonial Property Act 1976 wherever it appears, and substituting in each case the expression Property (Relationships) Act 1976.

15 Applications may be heard together
  • Section 160 of the principal Act is amended by omitting from subsections (1) and (2) the expression Matrimonial Property Act 1976, and substituting in each case the expression Property (Relationships) Act 1976.

16 Court may make orders as to settled property, etc
  • Section 182(6) of the principal Act is amended by omitting the words section 21 of the Matrimonial Property Act 1976, and substituting the words Part 6 of the Property (Relationships) Act 1976.

17 Consequential repeals
  • Sections 4, 5, 7, and 8 of the Family Proceedings Amendment Act 1991 are consequentially repealed.


Legislative history

27 March 2001Divided from the Property (Relationships) Amendment Bill (Bill 109-4B)
29 March 2001Third reading
3 April 2001Royal assent