Property law and polygamy - New Zealand

[FollowingHim]

Just ran into this, good to mention on here for the record, don't know of anyone who this affects and hope it never affects anyone!

New Zealand law already accounts for property division when there are multiple de-facto relationships, or a marriage and a de-facto relationship, and the law actually anticipates polygamy well and is pretty fair.

In essence:
- A de-facto couple are considered to have all the same property rights as a married couple once they've lived together for 3 years.
- All relationships are between two people, but someone can have multiple relationships.
- There is no priority given to marriage over a de-facto relationship, each has equal claim.
- If someone has multiple simultaneous relationships regardless of maritial status, and property claims are made, the claims are assessed on each relationship "in accordance with the contribution of each ... relationship to the acquisition of the property".

This ignores:
- Maritial status. The legal wife has no more or less right than the de-facto wife (after 3 years of the de-facto relationship).
- Order. Provided they existed at the same time at any point, it is irrelevant which was first.
- Duration. After 3 years of a de-facto union the law ignores how long each relationship has lasted for - the 20-year and 5-year wives have equal rights. However if the 20-year wife has contributed more to acquiring assets (as is to be expected) this will be recognised.

The main issue to bear in mind is that a de-facto relationship must exist for 3 years to have these rights. This reduces the new wife's rights initially, but also has the positive aspect that the family isn't risking losing half their assets to a woman who hangs around for a month then disappears. Just a dynamic all need to be aware of.

I am not a lawyer, this does not constitute legal advice, and could contain errors...

Source: http://www.legislation.govt.nz/act/...+(relationships)+act_resel_25_a&p=1#DLM441922

52A Priority of claims where marriage or civil union and de facto relationship
(1)This section applies in respect of relationship property if—
(a)competing claims are made for property orders in respect of that property, one claim being in respect of a marriage or civil union, as the case may be, and the other claim being in respect of a de facto relationship; and
(b)there is insufficient property to satisfy the property orders made under this Act.
(2)If this section applies, the relationship property is to be divided as follows:
(a)if the marriage or civil union and the de facto relationship are successive (regardless of the order in which they occur), then in accordance with the chronological order of the marriage or civil union and the de facto relationship:
(b)if the marriage or civil union and the de facto relationship were at some time contemporaneous, then,—
(i)to the extent possible, the property order relating to the marriage or civil union must be satisfied from the property that is attributable to that marriage or civil union; and
(ii)to the extent possible, the property order relating to the de facto relationship must be satisfied from the property that is attributable to that de facto relationship; and
(iii)to the extent that it is not possible to attribute all or any of the property to either the marriage or civil union or the de facto relationship, the property is to be divided in accordance with the contribution of the marriage or civil union and the de facto relationship to the acquisition of the property.
(3)For the purposes of this section, a marriage and a de facto relationship are successive if the de facto relationship begins during the marriage, but after the spouses cease to live together as a married couple.
(3A)For the purposes of this section, a civil union and a de facto relationship are successive if the de facto relationship begins during the civil union, but after the civil union partners cease to live together as civil union partners.
(4)In this section, and in section 52B, property order—
(a)means an order made under any of sections 25 to 31, and 33; and
(b)includes a declaration made under section 25(3).

52B Priority of claims where 2 de facto relationships
(1)This section applies in respect of relationship property if—
(a)competing claims are made for property orders in respect of that property but in relation to different de facto relationships; and
(b)there is insufficient property to satisfy the property orders made under this Act.
(2)If this section applies, the relationship property is to be divided as follows:
(a)if the de facto relationships are successive, then in accordance with the chronological order of the de facto relationships:
(b)if the de facto relationships were at some time contemporaneous, then,—
(i)to the extent possible, the property orders must be satisfied from the property that is attributable to each de facto relationship; and
(ii)to the extent that it is not possible to attribute all or any of the property to either de facto relationship, the property is to be divided in accordance with the contribution of each de facto relationship to the acquisition of the property.

 

[andrew]

That sounds like a pretty good, practical system!

 

[UntoldGlory]

Indeed! Thanks for the info!

 

[FollowingHim]

Anyone seriously considering the application of this law to their own situation would be wise to consider this recent court case. Essentially, a man had a hidden affair for 27 years. When his wife of 47 years divorced him, but his relationship with the mistress remained intact, the man and his mistress claimed to have been in a de-facto relationship, so that she would have some claim to his property to reduce the amount his wife could claim. The court rejected this argument and decided that they did not have a valid de-facto relationship - apparently, mainly because it was in secret, and for many years they had both firmly denied being in a relationship. However they had not kept the relationship secret from others, both of their parents were aware of it for instance, various social and business associates considered them to be a couple etc - but this did not persuade the court. This is a terribly deceitful situation that does not parallel anything we would recommend anyone getting into - however from a legal perspective it is important to ponder.

Essentially, to be "valid", there is a high bar set for recognition of a de-facto relationship. If everything is open, well understood and accepted by all parties, I expect the courts would have little problem with it and would apply the law outlined above. But if the relationship is secretive, being denied to some people, and those people can claim in court that you stated clearly to them that you were not in a relationship, things could get messy very quickly.

So be honest and open if you want this property division law to apply to your relationships.

 

[woman]

Based on your info: i have to agree with the court in this case. i understand from the information there were two very separate relationships and properties. The man lived with his wife and the "affairwoman" lived with her husband and the properties were not shared nor intertwined. I think if the court had allowed this it would soon be misused. (it would already be!) Imagine a man having an affair for 3 years, and then the "affairwoman" starts claiming half his property? Or, a man wanting to divorce his wife and then says his wife is entitled to less than half the property they shared because hey he had an affair for 3 years!
As i understand it, the other woman must live with the man or actively share the same property he shares with his legal wife to become as a 2nd wife, or she can only claim her part of property that she shares with him and that he does not share with his first wife. I think this law has to be there because in NZ people first have to live seperate before they can actually divorce.

I think the best thing to do, if you want plural marriage, is to make a contract and write in it what happens to property shared if one dies or if one leaves.

 

[FollowingHim]

In this case, yes, the decision is probably reasonably fair. I'm not disagreeing with the court. This is not at all the sort of relationship we would encourage. But it has implications for other situations that might appear, in the eyes of the court, to have legal similarities to this case.