With a population of just 4 million, New Zealand has been able to pave the way for major innovations in divorce law to emerge. Its unusual population mix of Maori, Pasifika and Asian populations, subject to laws imported from the UK, makes New Zealand something of a weathervane for how divorce law may develop – especially in a Western context.
Insights spoke to Jeremy Sutton, Adjunct Lecturer at the New Zealand College of Law, to better understand how New Zealand has come to lead the way in certain aspects of divorce law reform and practice, while still being challenged by funding cuts.
Major Reforms in NZ Divorce Law
Family Court Proceedings Reform Bill 2012 (‘Reform Bill 2012’)
The Divorce Law system in New Zealand has in the last year undergone one of its biggest reforms since its inception, observed Jeremy. The Reform Bill 2012 included features similar to recent changes in Australia, such as:
- Emphasis on out of court resolution and parenting information programmes. This has been in the introduction of a new and expansive mandatory Family Dispute Resolution (FDR) process prior to parties applying to Court.
- A reduction in the use of Divorce Lawyers and further cuts to legal aid.
- A reduction in the use of Lawyer for Child.
- A clarified focus on Domestic Violence.
- A remodeled family court track system.
The Children, Young Persons and Their Families Act 1989 (‘CYPF Act’)
The CYPF Act was enacted to reflect that previous legislation was no longer politically and culturally appropriate for New Zealand. Of particular note were concerns around lack of engagement with indigenous Maori culture and processes, especially issues around removing children from Maori families.
As Sutton noted, the Family Group Conference was a standout feature of the new legislation. Intended to ensure that a child’s whanu hapu, iwi and wider family are involved in decision making about the child, the Family Group Conference took into account the fact that many New Zealand children do not come from nuclear families – that culturally speaking, there are many different concepts of ‘family’ in New Zealand.
The Family Group Conference is also used in New Zealand’s unique Youth Justice System, which deals with offenders under 17 very differently to adult offenders, and can incorporate restorative justice principles in decision making about and with the young person and the victim.
“It was — and remains – world pioneering legislation that has subsequently drawn the interest of many other countries. It has been copied and adapted in Australia, the United Kingdom, Asia, South Africa and Canada,” said Sutton. Despite its iconoclastic legal status, Sutton acknowledged the Family Group Conference does have its issues, “particularly if there is significant dysfunction in a family and no or limited family to actually attend the Family Group Conference meaningfully.”
The Domestic Violence Act 1995 (‘Domestic Violence Act’)
“New Zealand also has very high rates of domestic violence compared to other OECD countries,” said Sutton. Under the Domestic Violence Act, the definition of domestic violence was broadened to encompass psychological and sexual as well as physical violence. The Act also acknowledged that domestic violence can come from a range of different people besides a partner.
Smaller Divorce Law Practices and Changing Demographics
Against this backdrop of legislative reform, New Zealand itself has been changing. Immigration from Asia has increased significantly, leading to rising rates of intermarriage across New Zealand’s myriad cultures. Like much of the Western world, marriage and childbearing are in decline, women’s workforce participation is rising, while break-ups and new relationships are becoming more frequent. New Zealand’s ageing population is increasingly being cared for the state rather than by extended family.
“All of these changes create complexity, for families themselves and for those who interact with them,” observed Sutton.
In recent years, the divorce law profession (or those purely practising divorce law) has been shrinking, particularly in light of cuts to legal aid and the introduction of fixed fees, said Sutton. “This has made it unsustainable for many to purely practice divorce law.
However, there are benefits to being smaller. Of New Zealand’s divorce law community, Sutton observed: “It’s a close knit and collegial atmosphere.”
“The information posted on this website is prepared for a general audience, without investigation into the facts of any particular case. This information is no substitute for legal advice and does not create a lawyer-client relationship; you are advised to consult with a lawyer on any legal issue.”