5 July 2000

 

 

SUBMISSION

 

To the Justice and Electoral Committee on the House of Representatives Supplementary Order Paper No. 25

Matrimonial Property Amendment Bill

 

Introduction

 

1.      This submission is from Stuart Birks, Director, Centre for Public Policy Evaluation, Massey University, Private Bag 11222, Palmerston North

 

2.      I wish to appear before the committee to speak to my submission. I can be contacted at: 06-350-3799 X2660

 

3.      The objective of the Centre for Public Policy Evaluation is “To facilitate the achievement of excellence in research in priority areas and to develop its domestic and international links. The focus will be on economic aspects of policies in a multidisciplinary context.” The work of the Centre has included research and publications in the areas of family law and law and economics.

 

General

 

4.      Following the objectives of the Centre for Public Policy Evaluation, this submission is in the form of observations on the proposed legislation rather than recommendations. From an analytical perspective, the Bill raises several issues and concerns. In particular, are the proposed changes to the legislation appropriate, and have the wider social implications been adequately assessed? It is hoped that these matters will be given due consideration by the Select Committee.

 

5.      The legislation as a whole appears to greatly restrict the scope to recognize a larger contribution made by someone bringing more assets or earning power to a relationship. At the same time, it greatly increases scope for consideration of childcare, homemaking and other unpaid contributions by the lower-income earning partner. While protecting the separate property of the lower-earning partner, it gives much discretion for the Courts to lay claim to the separate property of the higher-earner. As a result, there will be rapid transfers of assets from those who have more to those who have less. This penalizes those who enter into relationships after building a high-earning career. There will also be greater financial incentives to be the partner who cares for the children and who retains custody after separation. This is likely to result in fewer relationships, less accumulation of assets, and people only entering into relationships with others who have equivalent assets and earning potential. The result is likely to be greater inequality of wealth and earnings over households, less family stability, reluctance to form relationships, attempts to "hide" relationships or relinquishing of custody so as to enter a new relationship, more sole-parent families with non-custodial parents excluded from effective parenting roles, and less long-term planning by individuals and families. These possible consequences should be thoroughly considered before proceeding with this legislation.

 

6.      Even without further debate, the suggestion of law changes as contained in the Supplementary Order Paper is enough to send a signal on the sort of settlements to expect and to influence Judges in the Family Court in areas where they have discretion. While there is some scope for those in de facto relationships to opt out of the legislation, the same cannot be said for those who are married.

 

7.      There are also interesting implications arising from the failure to recognize differences between relationships. Are all relationships the same? There seems to be an assumption that people only enter into one relationship in their lifetimes, after which they have to support themselves financially. This is not the case, and relationships differ. Should there be identical rules for marriage and de facto relationships, for first relationships made with the intent of staying together for life and for subsequent shorter term relationships for companionship, or for relationships where the partners are both parents to children living with them and for those where only one partner is a natural parent to those children, or relationships where one partner has children living elsewhere and the other doesn't, or where partners enter the relationship with differing asset levels or earning potential?

 

8.      The existence of unclear criteria and the extent to which lawyers will be able to generate litigation may also be of concern. Judge Boshier has called for "innovation and diversity in the formulation of claims … counsel being prepared to push boundaries".[1] Given the contents of the Cotter and Roper Report[2], this suggests less the application of the intent of lawmakers than uncontrolled game-playing. Cotter and Roper identified problems with the behaviour of lawyers and the ineffectiveness of the Law Society's complaints procedure. To give some extracts:

 

"It seems the meaningfulness or significance of the Rules is not appreciated … There was…a conscious risk-taking to get around them…the impression that any course of conduct was acceptable…" (pp.10-11)

 

"…there is a risk of an emerging "amorality" in the New Zealand legal profession with regard to professional ethics." (p.56)

 

"Most lawyers…knew of the Rules…but said they seldom seemed to refer to them either because they were not relevant, or were generally just not applied." (p.58)

 

"Far too often there is an attitude that you get away with as much as you can." (p.58)

 

9.      It is interesting to consider the Government's position in attempting to rush through this legislative change in comparison to its reaction to the Shared Parenting Bill. Some of the points raised in opposition to that Bill could be considered equally valid here. To paraphrase a Government press release[3]:

 

While the objective of providing for a just division of relationship property was laudable, it was unlikely that it would be realised or achievable through its provisions. The Government will be giving detailed consideration to a wide range of family matters later this year and this will provide an opportunity to take a considered view of all relevant issues, including those raised in the SOP.

A one size fits all solution (equal sharing unless repugnant to justice) may not be appropriate.

The bill places the rights of parents above those of children and as such it is inconsistent with other family law statutes.

 

10.  The need for consideration of "all relevant issues" in a comprehensive manner, rather than a piecemeal approach, is also highlighted by the content of the submission of the Human Rights Commission to the Government Administration Services Select Committee on the Matrimonial Property Amendment Bill 1998 and the De Facto Relationships (Property) Bill 1998, July 1998:

 

3. The Universal Declaration of Human Rights

...

3.4 Article 16(1) provides that men and women of full age have the right to marry and found a family; and relevantly they are entitled to equal rights as to marriage, during marriage and at its dissolution. Article 16(3) provides that the family is the natural and fundamental unit of society and is entitled to protection by society and the state.

 

4. International Covenant on Civil and Political Rights

...

4.3 Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.

...

5. Convention on the Elimination of Discrimination Against Women

...

5.4 Article 16 provides that States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

Article 16(f) ensures the same rights and responsibilities during marriage and at its dissolution."

 

While quoting these provisions, the Human Rights Commission then suggested unequal division of matrimonial property on separation. The provisions as highlighted might be thought more relevant to the issue of shared parenting. At the very least, it seems inappropriate to consider unequal division without regard for the ongoing nature of the family after separation.

 

 

11.  Other articles in international conventions may also be relevant. Article 5 of CEDAW also refers to "the common responsibility of men and women in the upbringing and development of their children". The United Nations Convention on the Rights of the Child also makes reference to parents' provision of direction and guidance to their children (Articles 5 and 14), children's rights to know and be cared for by their parents (Article 7), direct contact with both parents on a regular basis (Article 9), and both parents having common responsibilities for the upbringing and development of the child (Article 18). It is not clear that any of these factors have been taken into account in the proposed legislation.

 

12.  As an additional general point, there may be problems in future with the use of the term "family" when describing "family home" and "family chattels". The current meaning of "family" in the Census and other statistics is as a subset of "households". In other words, a family lives in the same household. Given the number of parents who live apart, it might be more appropriate to define families in terms of their relationships to each other. Rather than having one-parent and two-parent families, it could be more accurate in some circumstances to consider one-home and two-home children, for example. The use of "family" in the current context in this legislation is particularly undesirable as it reinforces the perspective of sole-parenthood and the lack of any parenting role for non-custodial parents.

 

 

Specific points (page numbers refer to pages in the SOP)

 

On page 3:

 

13.  New section 1G:

 

"Part 4 sets out how the property of the partners to a marriage or a de facto relationship is to be divided when they separate and cannot agree on the matter. It deals with matters like -

…

(c) can the Court do anything to redress any disparities between the income and living standards of the partners after the relationship ends?"

 

14.  Note that this is a fundamental change, considering not the situation in the relationship and equal sharing there, but rather focusing on post-separation circumstances. This shift of focus requires serious debate. Why are post-separation circumstances relevant? If they are to be considered, then how is it justified that no allowance is made for differences in circumstances before the start of a relationship?

 

On page 4:

 

15.  Interpretation:

 

"In this Act, unless the context otherwise requires, -

…

"child of the relationship -

(a) means any child of both partners; and

(b) includes any other child (whether or not a child of either partner) who was a member of the family of the partners…"

 

16.  While this is similar to the definition in the Matrimonial Property Act 1976, point (b) assumes a particular significance under the proposed legislation as it can be a factor considered in determining the allocation of assets. Someone who enters into a de facto relationship while having custody of his/her own children from another relationship may then be able to claim a larger share of the assets of the new partner on account of the children. This will affect people's willingness to form blended families.

 

17.  It is also unclear what is required for a child to be a member of a family. Under the Child Support Act 1991, the standard criterion is that the child resides in the household for at least 40 per cent of nights. Following the Social Security Amendment Act No.2, 1991, under section 70B of the Social Security Act shared custody involves each parent having primary responsibility for the care of a child for at least 40 per cent of the time. Question 10 of IRD form FS 1 covering Family Assistance recognizes shared custody if the time spent caring for a child totals at least one third of the year.[4] In any event, a child could be spending a considerable amount of time in more than one household.

 

On page 7:

 

18.  "Superannuation scheme entitlement-

…

(b) includes any such entitlement payable to a surviving partner on the deceased partner's death"

 

19.  There is no qualification to allow for the fact that the contributor's scheme may mean that the entitlement only exists if there is a surviving partner (as with payments to a widow). In such a case the end of the relationship results in the loss of this entitlement for that person, although a future spouse could then gain the entitlement. The entitlement is then the property of the spouse, not the contributor. Given that the valuation of a superannuation policy is based on the estimated value at the date of separation, and it is known then that the separation has occurred, it is not clear how such conditional entitlements could be included. To do so is to make the contributor liable for the entire loss of value due to the separation.

 

On page 8:

 

20.  "(5) For the purposes of this Act, in the case of partners who are living in a de facto relationship, their partnership ends if -

(a) they cease to live together in a relationship in the nature of a marriage"

 

21.  Does this mean that they can still be living together, but in some other way? Is there going to be a defining criterion such as the parties having ongoing sexual relations? How frequent would these have to be? What of couples who "stay together for the sake of the children? There is much scope for judicial discretion.

 

22.  We see further opportunities for discretion at the bottom of the page:

 

"(1) In this Act, relationship of short duration means a partnership relationship in which the partners have lived together as partners - …

(b) for a period of three years or longer, if the Court, having regard to all the circumstances of the relationship, considers it just to treat the relationship as one of short duration."

 

23.  So the Court not only has a choice in determining the length of the relationship, but can also be flexible in how it considers a relationship of a particular length, without any guidance in the legislation. At this point in the SOP short duration can be extended beyond three years. On page 18 there is scope for consideration of relationships of less than three years in ways other than the standard for short duration.

 

On page 12:

 

24.  Modifications to section 8 of the Matrimonial Property Act are detailed here. Subsection (e) is still subject to Section 10 of the Act, but such a qualification has not been made to subsection 8(c) to correct for Lewis v Lewis [1993] 1 NZLR 569. Section 8(c) states that all jointly owned property is matrimonial property. Section 10 states that property acquired by succession or by survivorship or as a beneficiary under a trust or by a gift is separate property except under specific circumstances such as via intermingling or by use for a matrimonial home. There is therefore a conflict when the conditions for both sections are met. P.574 L54 to P.545 L2 of Lewis v Lewis read:

 

“It can be said that if Parliament had intended s 8(c) also to yield to s 10, a subordinating “subject to” would have been provided. Since Parliament did not do this there is no sufficient reason for the Court to read in such a qualification.”

 
25.  The decision is based on the presumed intent of Parliament. Pp.4108-4111 of Hansard of 23 November 1976 (Vol.408) contains Mr McLay’s speech presenting the report of the committee on the Matrimonial Property Bill. On p.4109 he defines matrimonial property, including the terms of section 10 without qualification by section 8(c). He is even clearer introducing the second reading in his speech of 9 December 1976 (pp.4721-4722):
 
“The other suggestion made, which is, in my opinion, an irresponsible suggestion, is that the Bill is some way represents a “confiscation of property”…The purpose of the legislation, in my view, is to enable possession to be given, or a just and proper apportionment to be made, of those capital family assets which Lord Denning has referred to as the things intended to be a continuing provision for the parties during their joint lives, the working capital of the marriage partnership that may be generically described – and I underline the words ‘marriage partnership’, in contrast, for example, with formal gifts or investments brought to the marriage by one party or the other, or achieved by incomes ranging well outside the normal family needs.”[5]
 

26.  As if that was not clear enough, he then reiterated the significance of the term ‘marriage partnership’.

 

27.  The wish to avoid "confiscation" is indicated in the SOP with the proposed subsection 8(i) on superannuation, defining as relationship property:

 

"the proportion of the value of any superannuation scheme entitlements (as defined in section 2) that is attributable to the partnership relationship"

 

28.  In other words, unlike the current legislation, the proposed legislation considers only a proportion of the superannuation scheme entitlement to be relationship property. The intended meaning of this change is apparent from the answer to Question for written answer no.10022, lodged in the House on 30 May 2000:

 

"10022. Dr Muriel Newman to the Associate Minister of Justice: Does the Government intend to continue the practice of considering superannuation to be matrimonial property, rather than restricting it to that share of entitlements accumulated during the time of the relationship?

Hon. Margaret Wilson (Associate Minister of Justice) replied: The Matrimonial Property Amendment Bill amends the current provision in the Matrimonial Property Act 1976 relating to superannuation by providing that only the proportion of the value of any superannuation scheme attributable to the marriage partnership is matrimonial property. The Government supports this change.”

 

29.  While not without some scope for judicial discretion, this does appear to establish the principle that assets accumulated before the start of a relationship need not be relationship property, even when there have been further contributions to them from relationship property. The principle is extended to other assets, but on different criteria, as described below. It applies only to separate property, however, with there being less scope than currently applies to recognize unequal financial contributions to relationship property.

 

On page 13:

 

30.  As under the current Act, there is scope in section 9 for the Court to treat separate property acquired when not living in a partnership relationship as relationship property if the Court "considers that it is just in the circumstances". This option may assume greater significance under the proposed legislation, given its specification of circumstances to be considered.

 

On pages 13 and 14:

 

31.  Subsection 9(A) describes when separate property becomes relationship property:

"(1) If any increase in the value of separate property, or any income or gains derived from separate property, were attributable (wholly or in part) to the application of relationship property, then the increase in value or (as the case requires) the income or gains are relationship property.

(2) If any increase in the value of separate property, or any income or gains derived from separate property, were attributable (wholly or in part, and whether directly or indirectly) to actions of the other partner, then -

(a) the increase in value or (as the case requires) the income or gains are relationship property; but

(b) the share of each partner in that relationship property is to be determined in accordance with the contribution of each partner to the increase in value or (as the case requires) the income or gains."

 

32.  (1) suggests that the extent of application of relationship property has no impact on the division of the associated increase in value, income or gains. This could mean that an asset might have one unprofitable year after several years of providing a net gain which benefited the relationship, and that one year of covering the losses out of relationship property would make all increases in value, income and gains relationship property. There is an indication of proportionality in the treatment of superannuation entitlements, given the nature of contributions to superannuation. The same does not apply for these assets.

 

33.  (2) indicates a difference in treatment of financial and non-financial contributions. It is not clear why the division of relationship property under (1) is not determined according to the extent of the relationship contribution to the increase in value, income or gains. It is also unclear how gains arising from direct or indirect actions are to be assessed so as to determine the relative contributions of the partners. Considering how relationship property is to be divided equally under many circumstances irrespective of differences in financial contributions, there is a wide range of values imputed to non-financial contributions. The inclusion of indirect input provides almost unlimited judicial discretion. Some explanation as to how such discretion may be exercised is given on page 76, which describes the existing section 15. This specifies unequal division of relationship property other than the matrimonial home and chattels "in accordance with each partner's contribution to the partnership relationship". Even with extreme differences and with a substantial matrimonial home, a split of section 15 property wider than 60-40 is currently unlikely.

 

On page 14:

 

34.  Subsection 10(3) states that, "Property that 1 partner acquires by gift from the other partner is not relationship property unless the gift is used for the benefit of both partners."

 

35.  Does this mean that jewelry is not relationship property, but power tools are?

 

On page 17:

 

36.  There is scope for unequal sharing of relationship property under section 15 of the current legislation where one partner's "contribution to the marriage partnership has been clearly been greater than the other". Under the SOP, it is proposed to have one rule for all relationship property, with unequal division being restricted to situations where an equal share would be "repugnant to justice". While essentially removing scope for unequal splitting on the basis of one partner's greater contribution, unequal splitting is introduced on the basis of other, more selective and more specific criteria, as described in subsequent pages.

 

On page 18:

 

37.  It states that an order for division of relationship property can be made in a de facto relationship of short duration if there is a child of the relationship. However, a "child of the relationship" is not necessarily the child of both partners. People may be more reluctant to re-partner under these circumstances.

 

On page 19:

 

38.  Here a new criterion for unequal splitting is introduced:

 

"15 Court may order lump sum payments

(1) This section applies if, on the division of relationship property, the Court is satisfied that, after the partnership relationship ends, the income and living standards of 1 partner (partner B) are likely to be significantly higher than the other partner (partner B) because of the effects of the division of functions within the relationship while the parties were living together.

(2) In determining whether or not to make an order under this section, the Court may have regard to -

(a) the likely earning capacity of each partner;

(b) the responsibilities of each partner for the ongoing daily care of any minor or dependent children of the relationship;

(c) any other relevant circumstances."

 

39.  Economists would be hard-pressed to determine future earnings with any accuracy. Those relying on a legal training are even less well equipped for this task. Not only are career paths uncertain, but there are also potential repercussions from the emotional, financial and time pressures of relationship breakdown and the changed nature of contact with children. Earnings at the time of separation may be high for one partner due to the division of roles requiring particularly high levels of effort into paid work. Partners who have specialized in childcare may not increase their paid work time immediately after separation. Should the lower-earner be required to demonstrate that adequate efforts are being made to increase earnings? Should payments be made to people who treated marriage to a high income earner as a meal ticket with no intention of earning themselves?

 

40.  Information on incomes and post-separation earnings and well being currently put before the Court is selective and misleading.[6]

 

41.  A lump sum payment, while easy to administer, may be hard to correct if inappropriately set. It is essentially a levy on the future earnings of the higher earner, but takes no account of the earning potential of the parties before the start of the relationship. Nor does it consider the possibility of forming new relationships and any associated earning or other obligations - it could be that the higher earner will be required to support a new partner, whereas the lower earner might expect to be supported in a new relationship.

 

42.  Another interpretation of the lump sum provision is that higher earnings during a relationship can result in a major capital obligation at the end of the relationship, perhaps to the point where the earner's net income during the relationship is negative. If this were recognized, then there are likely to be significant changes in people's behaviour. In particular, the law's consideration of relationships as if people enter into one relationship only may create a major disincentive to any relationship formation.

 

43.  It is strange that the "unpaid" contribution of the lower earner is valued highly in the relationship, being given at least equal weight to the greater financial contribution of the other partner, but considered to be of no value subsequently when assessing post-separation circumstances. Also of concern, and perhaps a reason why future relationships may be less likely, is subsection 2(b). Any new partner of a custodial parent may be obliged to accept less than half the relationship property as a consequence of having allowed the custodial parent to care for that parent's children from an earlier relationship. In other words, someone can be penalized for forming a relationship with a custodial parent, not only in terms of accepting that parent's lower earnings (child support and family assistance aside), but also by being ordered to make a lump sum payment on separation.

 

44.  Page 19 also describes criteria for payments where one partner has contributed to increase in value of separate property. Although on pages 13 and 14 reference is made to division on the basis of the contributions made, subsection 15A makes clear that payment only applies if the separate property belongs to the partner likely to have significantly higher income and living standards[7] and where the difference in earnings is due to the division of functions in the relationship. In particular, this condition benefits someone who is considered to be providing ongoing daily care for minor or dependant children.

 

45.  The scope for one-way unequal division of relationship property places a ceiling on the value that can be considered for the input of the higher income earner, and a floor for the value of the lower income earner, with the latter's input being considered at least as valuable as the input of the former. The higher earner cannot be awarded more than half and the lower earner cannot be awarded less than half of the relationship property. It is conceivable that this may not be appropriate in some situations, particularly as in many relationships both partners participate in caregiving and give each other support and assistance.

 

On page 21:

 

46.  Subsection 18(1) describes what is meant by contribution to the partnership relationship. It includes:

 

"(g) the foregoing of a higher standard of living than would otherwise have been available;

(h) the giving of assistance or support to the other partner (whether or not of a material kind), including the giving of assistance or support that -

(i) enables the other partner to acquire qualifications; or

(ii) aids the other partner in the carrying on of his or her occupation or business."

 

47.  Does (g) acknowledge that someone on a high income who enters into a relationship with someone on a lower income suffers a fall in living standards? Is it recognized that both partners suffer a fall in living standards when one decides not to undertake paid work or to undertake reduced hours of paid work? Shouldn't (h) also consider assistance or support to include supporting someone financially so as to enable that person to stay home and care for children, whether or not they are the earner's, or to follow other pursuits?

 

On page 22:

 

48.  Mention is made of misconduct of partners. It is not clear what is to be covered here, although it may be intended in part to give scope for discretion when domestic violence is alleged. If so, then it would be appropriate to consider carefully the conflicting research information on the nature of domestic violence.[8]

 

On pages 24-30:

 

49.  These refer to contracting out of the Act. The requirement to contract out, rather than contract in, creates the paradoxical situation with de facto relationships that those entering into a relationship in a committed way are more likely to recognize that commitment and see the need to use this provision. Those who find that a casual relationship is, over a period of time, drifting into one of co-habitation are more likely to find themselves trapped unawares by the legislation. Note also that agreements made under this provision are not immune from Court intervention if there are any "children of the relationship" (who need not be children of both partners). This is yet another disincentive to partnership formation.

 

On pages 58-64:

 

50.  These consider maintenance orders. There is frequent reference to "the standard of living of the parties when they are living together or lived together" and "the likely earning capacity of each partner". There are three periods that can be considered when assessing a relationship: before the start of the relationship; the period of the relationship; and after the relationship. The legislation pays very little attention to the first period, places great weight on the period itself, and introduces scope and criteria for consideration of the period after the relationship. Given that the legislation could apply to relationships of only three years in length, more attention could be placed on the first period, and less attention to the standard of living during the second period. Given also the value placed on unpaid work and perceived lower earning capacity, some consideration could be placed on the benefits of family, of time with children, and of the expectation of an ongoing long-term relationship with those children. Post-separation living standards should also be assessed bearing in mind possible benefit entitlements, child support payments, and contact with children.

 

51.  While there is provision for maintenance to end when the recipient enters into a new relationship, subsection 15(2)(a) on page 19 of the SOP permits lump-sum payments to be made based in part on likely earning capacity. In addition to the problem of determining such earning capacity, it is not clear why it should be a determining criterion if imputed earnings are possible in a subsequent relationship.

 

52.  One notable inclusion (on p.62) shows a clear deviation from the concept of a clean break. There it states that the Family Court can make an order for maintenance:

"(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."

 

53.  It might be imagined that there would be some time limit set after which such an order could not be made.

 

In summary

 

54.  The proposed legislation is very restrictive in some areas, while allowing much scope for judicial discretion in others. It is not clear that this is consistent with the "just division" intent of the original Matrimonial Property Act. Nor is it clear that it has been developed with consideration of wider family law issues such as its impact on families and on the interests of children. There is little guidance provided for judges as to how to apply their discretion, and there is little reason to believe that they are adequately informed of the wider issues and associated social implications to make appropriate decisions. There is a real danger that the legislation will be interpreted by a small number of Appeal Court judges out of the public eye and possibly on dubious grounds. The judiciary may not be alert to this danger. To quote Richardson, "I think it helped to have the same bench of judges hear all the early appeals [on the Matrimonial Property Act]".[9] The lack of publicity for Family Court proceedings and the absence of monitoring provisions in the SOP can result in much unrecognized damage being done.

 

 


[1] Pp..58-9 of Boshier P (1998) "Developments in Matrimonial Property", Family Law Conference, 31st August – 2nd September 1998, Christchurch, New Zealand Law Society, pp.51-69.

[2] Cotter W B and Roper C (1996?) Report on a Project on Education and Training in Legal Ethics and Professional Responsibility for the Council of Legal Education and the New Zealand Law Society, New Zealand Law Society

[3] "Welfare of children not advanced by Shared Parenting Bill", Press Release New Zealand Government 22/03/00 19:48:00 (http://www.executive.govt.nz/speech.cfm?speechralph=30651&SR=0)

[4]  See p.12 of FS 1, February 2000, Family Assistance Registration Pack (http://www.ird.govt.nz/resource/publicat/fs1_feb2000.pdf)

[5]  Note that the SOP extends the legislation to de facto relationships, and there are likely to be many second and subsequent relationships. These may involve co-habiting for companionship over a few years rather than with any life-time intent, may not involve the birth of any children to the partners, and may involve people with family commitments to people not living in the same household. It may therefore be inappropriate to consider such relationships to require a lifetime sharing of "the things intended to be a continuing provision for the parties during their joint lives" (my emphasis). As another perspective, especially when impact on earning potential is considered, perhaps relationship property should be defined in terms of what is created by the relationship, rather than what has been donated, although the latter could be a criterion for determining the division of assets after separation.

[6] For a critique, see for example Birks S (1998) Gender Analysis and the Women's Access to Justice Project, Issues Paper Number 2, Centre for Public Policy Evaluation, Massey University (http://econ.massey.ac.nz/cppe/papers/waj1.htm), sections 5.2 and 5.4 and appendix VI.

[7] Note that income and living standards are not equivalent measures. The income required to support a particular living standard depends also other factors such as household composition, custody and access arrangements, and unpaid work contributions.

[8] See for example section 5.5 of Birks (1998), and Birks S (1999) A  selective critique of Snively, Suzanne (1994), The New Zealand Economic Cost of Family Violence, Department of Social Welfare, New Zealand. (http://www.massey.ac.nz/~KBirks/gender/viol/ecfv.htm)

[9] Paragraph 2.11 of Richardson I L M (1999) "Family Courts: Some Questions for Consideration", Australasian Family Courts Conference, 16 October 1999