Franks Stephen: Relationships (Statutory References) Bill — In Committee 
Franks Stephen: Relationships (Statutory References) Bill — In Committee 
[Volume:624;Page:19096] 
STEPHEN FRANKS (ACT) 
: 
 I rise to debate Part 2. This bill changes around 100 other Acts to give meaning to the Civil Union Bill that was passed before Christmas. Part 2 is a very small part that amends regulations. Part 1 was the amendments to other Acts and the regulations that are amended in this Part 2—it is only about one page long—are the Family Courts Rules and the Property (Relationships) Forms Regulations. Members will remember that the Property (Relationships) Act was the Act that replaced the Matrimonial Property Act. It was the Hon Margaret Wilson’s gift to New Zealand in 2002 when the status of de factos was made in her claim clear when she extended the rights of matrimonial property to de factos. The regulations we are looking at here are the regulations that implement part of the Property (Relationships) Act that came into force in 2002. 
What the bill does is remind us of what has not been changed in the property relationships law. These changes are essentially mechanical. They insert “civil union partner” wherever one sees “partner” or “spouse”. Previously of course in that bill alongside “spouse” we had added in “de facto”. So it means that the Property (Relationships) Forms Regulations now include “spouse” “civil union partner” and “de facto partner”. 
This bill should have been removing—if the Justice and Electoral Committee had had the courage to carry through the scheme of what it did when it got this bill—the references to “de facto” in much of the Property (Relationships) Act and regulations. We should have been acknowledging that there was a big mistake made in 2001. The term “civil union partner” should have stood alongside “marriage partner” once the decision was made by Parliament in December. But “de facto” should have been treated as quite different for the purpose of the Property (Relationships) Act. The Property (Relationships) Act should have gone back to being something that people could freely opt into if they wished but not something that people were opted into without consent or without even knowing it by the Government. 
Alternatively this part of the bill could have tried to have a better definition of “de facto”. If de facto couples were going to be compulsorily married so that they had to share their property the bill could have tried to sort out the kinds of de facto or the types of de facto relationships where sharing might be what the parties would reasonably expect. For example this might have related to couples who lived together for 3 years and where the party with the assets had either not expressly said they did not want it to happen or the party without the assets was the one who was responsible for the children. At the moment it can probably cost up to $2000—the Law Society told us $600 per person but somewhere between $1000 and $2000—to opt out of the automatic property sharing in the Property (Relationships) Act. 
I think this part amends the forms that were supposed to represent a very simple standard form contract to allow people just to look up the regulations sign that contract and have the opt-out done. Well that was sabotaged by the Minister and the officials in the Ministry of Justice. When that form of simple contract was drafted it did not achieve the objective. In fact it was drafted in a way to negate what the committee had intended. I think I ought to know what the committee intended because it was my idea in the committee and I have to say that I feel embarrassed by the way it was implemented. I should have realised how bloody-minded the Minister would be about that particular part of the Act. 
It was a simple concept that competent adults can be deemed to know what they want and if they want to share their property as married people then we would take them to mean sharing when they got married and now when they enter into a civil union but that when they entered into a de facto relationship they were deliberately intending not to take on the property consequences of marriage. What the form in the regulations for opt-out should then have provided was a simple form to fill out to confirm that. If we had to have the automatic deeming then we should have had very straightforward opting out. We do not. 
The position should have been the same for married couples who wanted to retain their financial independence. Though there is nothing untoward in treating people getting married or entering into a civil union as if they are choosing to share their property and their assets from the date of their marriage equally as adults it should not require them to have to go along to lawyers and get lawyers to certify that they know what they are doing if they sign a simple and straightforward form to the contrary set out in the regulations to the Act.Well they cannot do that. They still have to get lawyers and the lawyers will tell them that the form is so rudimentary that it would not be worth using. The lawyers will tell them also that the Property (Relationships) Act allows the court to second-guess them. It allows the court to decide that things have changed and that all bets are off. It allows people to renege on their deals when they may even be the only thing that reassured a party enough to let them get married or to live together in the first place. 
There was an odd assumption even in the way in which the select committee considered those matters. It kept talking about those regulations rights and obligations as if somehow they were protecting someone in a relationship. More likely in many cases in property relationships they were actually burdening someone. Often it is the woman in a marriage or a previous relationship who has managed to protect the family house—particularly as women tend to take the children more often—saved her money and ends up in a relationship looking at any new partner with deep suspicion. The new partner stepping into a relationship with children automatically gets the benefit of the property relationships property sharing and in fact can go gold-digging from day one. 
Women should have been protected from that by being treated as if they knew their own minds. This part could have had a revocation of that deemed automatic sharing that would probably mean that the people least likely to form new long-term stable committed companion relationships are in fact the people who need them the most. They are the people who are trying to rear children on their own. They are the people who ought to be able to rear children and invite someone into their life without fearing that they are there to take the house. A woman should be able to enter into a relationship without needing $2000 to get a lawyer to tell her that she is safe and that she will not lose her house second time around. They are the people who should not be told by lawyers that they cannot give them any guarantee because they do not know what the judge will say when their partner wants to renege on the deal. They can sign it solemnly and they can certify that both of them understand it yet the court can still renege. 
If the select committee had the courage of its own analysis we would have included in this part a revocation of the offending parts of the Property (Relationships) Act and we would have had the gratitude of possibly 200000 people in couple relationships across this country. We would not have needed to throw the entire scheme out. We could have made it plain that the courts for example must take into account the expectations parties have that when they do a deal as adults it will be upheld. We could have had a compromise position on this. If the Labour members could not bring themselves—