Should the law focus more on children’s interests?

The Property (Relationships) Act 1976 is mainly about how partners in a relationship divide property when their relationship ends.

Children have an interest in how their parents divide their property, but the law gives that interest a low priority. The Property (Relationships) Act 1976 says the court must “have regard” to the interests of minor or dependent children.

The court can also make orders that can directly or indirectly benefit children, such as:

  • putting some of the partners’ property to one side for the children;
  • granting occupation of the family home so the children can stay in a familiar environment and do not have to shift schools; and
  • postponing the time at which the partners must divide their property to avoid undue hardship for the primary carer.

The courts rarely make these orders. There are many reasons, but the main reasons are that:

  • The law does not direct the court to give priority to the interests of children. Instead the courts usually focus on the partners’ property rights.
  • There are tensions between the interests of the partners and the interests of their children. Partners may wish to end their relationship with a clean break. They may want access to their share of the property straight away, to start a new life.
  • It is not common for parents to apply for these orders.
  • Court proceedings are usually between the partners. Children rarely participate and it is unusual for the children to get a lawyer.

We want to know if the law should focus more on children’s interests.

Some people say that New Zealand’s law should take a more child-centred approach. They say children are people entitled to protection and care, and to be treated with dignity and respect. New Zealand has also signed up to the United Nations Convention on the Rights of the Child, which sets out children’s basic rights.

Children have an important interest in the division of their parents’ property. It can affect their accommodation, standard of living, where they go to school and their ability to maintain relationships with family, whānau, friends and community. Decisions about property can harm children. For example, if the family home is sold straight away, it can mean big changes for the children while they are dealing with their parents’ separation. If children are not provided for by their parents, the State might need to support them, for example through benefits.

Some people may think that the Property (Relationships) Act 1976 adequately protects children’s interests and does not need to change. When a relationship ends, the partners are still required to support their children. If children suffer because of the way their parents’ property is divided, then perhaps parents’ duties to their children could be strengthened elsewhere.

It might indirectly benefit the primary carer if the law gave greater priority to children’s interests, for example by allowing him or her to stay in the family home for a time. That may distort care arrangements as parents vie for the role of primary carer, or it may encourage other strategic behaviour that is not in the children’s best interests.

What do you think?

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If the law should focus more on children’s interests, there are several options for how the law might change. We want to know how you think the law should change.

Should children’s interests affect the general rule that each partner is entitled to an equal share of relationship property?

How important should children’s interests be in other instances?

When should the court put property to one side specifically for the benefit of children?

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