Why do we pretend children don’t exist when we divide relationship property?

In an adult relationship break up the adults aren’t the only ones to get hurt.  But in the context of a relationship property dispute, it is the adults who have all the rights.  Only the adults have a right to appear in Court and be heard, the right to lodge claims, and in most cases it is only the adults who have lawyers.

How well then is our relationship property law serving children, our most vulnerable members of society?

We asked much loved university lecturer, family law academic, and critic Professor Mark Henaghan to discuss the problem (and the solutions) for our latest episode of Divorce Café.

First, what is the scale of the problem?

Mark was involved in a major study surveying people who had been through a relationship property dispute with the Children’s Issue Centre at the University of Otago^[1].  Mark said a very common theme was the extent to which children’s lives changed if their primary caregiver didn’t get a decent deal in the property division, and in particular if they had to move out of the family home.

When the children have to move out of the family home, he says, they can blame themselves, struggle to adjust to new areas and make new friendship:

“…[having to leave the family home] changed the children’s whole perception of life…for the children going home to your home and having basically your friends around and your community, it makes such a difference…”

Keeping the children stable in the home can have many benefits, but is not always achievable.  If there aren’t two homes available for use, one party could leave money in the family home (to be repaid in stages or after an interval of time), parties can investigate withdrawing Kiwisaver, or (sometimes more palatable than paying more to your ex) funds could be put in a trust that owns a share of the home with the parent remaining in the home.

Parents who are encouraged to focus on their children’s needs first in a property division don’t use the children as weapons.

Mark sees good communication as a huge marker of how well children cope with a separation:

“Children do well if parents communicate in a civilised way and the environment doesn’t change too much and they are able to see both parents together doing things and to co-operate for them.  All those things make a difference for them…”

Communication is something all parents can work on.  The Parenting Through Separation course – a three hour session with other parents in similar circumstances – gets great reviews from clients.

Simple things like parents coming to the door at drop off can make a difference:

“The saddest thing I ever saw [was an advert] …it was a real little boy and he came on and he said “When dad drops me off from contact he drops me off at the end of the street and I have to walk up because he won’t drop me off at mum’s” and he just started crying.  And I cry every time I think about it – it’s such a small gesture if he had just come up to the door and handed his bag, ‘How are you, is everything alright?’, it would make all the difference to this boy.”

What law currently exists to protect and prioritise children in a relationship property context?

There is section 26 of the Property (Relationships) Act which requires the court in any proceedings under the Act to have regard to the interests of any minor or dependent children of the relationship, and if it considers it just, allows the court to make an order settling relationship property or part of it “for the benefit of the children of the marriage”

In practice the section is hardly ever argued in court – and Judges don’t stop in the middle of a hearing and say: ‘I must have particular regard to the interests of the children here: what does that require in this particular case?’

Mark says “the section has been interpreted very narrowly by Judges – if children have got special needs or something, they call it an exceptional case…it’s meant to be considered in every case.”

Mark says the Law Commission has recommended that the provision be strengthened, but the Law Society came out arguing that people would “game it”.  A very cynical approach in Mark’s opinion.

Section 28A is another section expressly prioritising children’s interests.  That section says that when determining a dispute about who should remain in the family home after separation, and for how long, the court “shall have particular regard to the need to provide a home for any minor or dependent child [of the relationship].”

The UN Convention on the Rights of Children was ratified by NZ in 1993 and parts of it have now been adopted into our domestic law.

Article 3 requires that in all actions concerning children, whether undertaken by courts of law the best interests of the child shall be a primary consideration.  That is a provision of our Care of Children Act, but not yet in the Property (Relationships) Act.

Article 12 provides that children who are capable of forming their own views must be given the right to express those views freely in all matters affecting the child, and the views of the child be given due weight in accordance with their age and maturity.  The child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly or through a representative.

Mark says Aoteroa should be a leader in this but we are still not doing what we say we should be doing.

“I think a lot of it’s to do with an entrenched way that the profession/judiciary see it, that it’s done a certain way, because you hear from adults…when it’s about money ‘it’s an adult issue, it’s nothing to do with children’”

How are these sections used: the myth of the “clean break”

There are cases in which Judges make occupation orders lasting for a number of years – to enable children to finish school in their local community.  In Lawrence v Baker^[1], the Family Court judge granted an occupation order that would have seen the caregiver staying in the jointly owned home for 8 ½ years until the youngest child (14 at the time of the first hearing) left home.  In that case the other party had sufficient assets to also have a decent standard of living despite not immediately having their share of the home.

Baker had been a stay at home parent and after their 14 year relationship ended, Lawrence married again, had another child, and moved to Singapore.  The matter reached the family court 4 years after separation when Lawrence applied to sell and get their money out of the home.

The Family Court granted Baker’s application for an occupation order lasting until both children finished school (which would have been a period of 8 ½ years in total), applying section 28A.  In the High Court the length of the order was reduced by a year because there had been some miscalculations in the separate assets available to be vested in Lawrence, and because the Judge thought there were also other important considerations such as the other parent’s right to a clean break.

Mark points out that the ‘clean break principle’ doesn’t exist anywhere in the law, and definitely does not prioritise children from who you

“never get a clean break!”.

Mark thinks the way these laws are applied would change if lawyers for the child were appointed in relationship property cases, as recommended by the Law Commission in its 2020 report on the Property (Relationships) Act 1976.

Lawyers can also play a role in focussing their clients on their children’s interests: how do the children get on in that scenario?  Mark considered the 6 hours free “marriage guidance counselling” was an effective way of resolving some issues before they got to Court.  He would like to see that come back as an alternative to FDR which doesn’t provide the same opportunity for the parties to get to know and trust their counsellor.

Mark agrees that nothing is simple when it comes to a separation and that there is no one answer to how to provide a just division of assets while also balancing the security and interests of the children.  But he knows that it is worth working at – because it is a public good.

What can be done?

To improve outcomes for children who are caught up in disputes between their parents Mark advocates:

• lawyers and parties keeping the children’s interests at the forefront at all times,
• dealing respectfully and constructively with the other parent, and
• exploring creative solutions to resolve impasses, find outcomes that are good for these particular children, and property solutions that meet the children’s key needs for security.

If you have questions or need advice on issues relating to a separation, please contact our family law team led by directors Stuart Henderson, Nicole Dore and Taina Henderson 09 430 4350.  You can watch Divorce Café on Youtube, and you can listen to the episode on Spotify, Apple or Google Podcasts, or by clicking here.

^[1] Sponsored by the Borrin Foundation https://www.otago.ac.nz/cic/research/otago0236705.pdf

^[2] [2013] NZHC2378