“Wife wins in court property shock” shrieks the headline in the New Zealand Herald today. The shock? On the dissolution of marriage, the wife got to keep a significant share of the property. What’s the shock in that? This is normal procedure when a marriage comes apart.
But it seems that some barristers in New Zealand are of the same opinion as a m’lud in Australia I wrote about last year. The Australian judge opined that where one person has made a “special contribution” to a marriage (i.e. made lots of money), then the other partner shouldn’t get a share of that on dissolution. The New Zealand barristers go a step further.
Barrister Anthony Grant has described the case as involving “the annihilation by stealth of separate property”. He says the case is “shocking” and “a stunner”, not necessarily because it was wrongly decided, but because people had not been aware that “indirect contributions” involving something as ordinary as household chores could convert a spouse’s separate property into relationship property.
“In a typical marriage where, say, the husband has separate property from an inheritance or a prior relationship he is now liable to lose it if his wife can say that her doing the housework helped him to increase the value of the property. While he was at his desk working on his separate property affairs and his wife was doing the dishes, sweeping the floor, feeding the kids, and so on – she was simultaneously taking the separate property!”
Oh noes! Women’s work is actually valuable!!! No matter that the wife’s work enable her husband to pursue property development, no matter that in addition to running the family home and rearing the children, the wife in this instance also earned over $300,000 during the 24 years of marriage, money that kept the debt-wolf from the couple’s door, no matter that even though the husband brought some assets to the marriage, a huge proportion of the increase in value of those assets occurred during the marriage, not before. According to this barrister, all she did was ordinary old housework, and that is utterly worthless.
This is in incredibly vicious view of marriage. When people get married, they are setting up a long term partnership, agreeing to go ahead in life together, as a couple, not as two individuals. They agree to share homes and property and daily life and children. It’s a complete merger of interests, not a series of arm’s length transactions. All the more so when a marriage has persisted for nearly quarter of a century.
Grant has some solutions though.
Grant suggested three ways for spouses to avoid the loss of separate property: [(1)] A Section 21 agreement that specifies who owns what before the relationship and ensures indirect contributions don’t affect that arrangement. [(2)] Vesting separate property in a trust at the outset. [(3)]Get a nanny or housekeeper do the housework.
(1) and (2) – meh. That’s fine if marriage is just a transaction. But in that case, why get married at all. And in any case, why block your ex-partner from being entitled to owership of a fair proportion of the increase in value during a marriage. But (3) stuns me. A full-time live-in nanny, and a full-time live-in housekeeper? Not only does that cost an incredible amount, but it says that all that is involved in rearing children is cleaning and feeding and supervising them. It takes loving, engaged, commitment to rear children, to ensure that they are happy and secure, that they know they are loved for themselves, they know that a parent will be there for them, not for a wage. The loving commitment of parenting can of course be combined with childcare. But it cannot be replaced by full-time (as in, 24 hours a day) care.
Then the final little dig, but this time, from another lawyer, Andrew Watkins.
“It will certainly put the owner of the land on the back foot. It’s sending a signal to husbands, or people who have separate assets, to sign an agreement first. That’s the first and best thing to do.”
Spot the little slip of the tongue there? It’s men who own property, and it’s men who need protecting from those rapacious hordes of women who think that their work, and their contributions to a marriage, should actually be valued.
Dinosaurs. Alive and well in New Zealand.