Public relations practitioner Sarah Sparks and property developer Greg Olliver have waited eight years for their matrimonial property case to be heard in court. Photo / Doug Sherring
Justice minister Andrew Little says he expects judges handling relationship property cases to "blow the whistle" on those who brought delays to the process and to fast-track the cases to hearing.
His comments come after a series of drawn-out matrimonial legal battles, including one high-profile case which has taken eight years to get to court.
Little has put off a recommended reform of the Property (Relationships) Act 1976, despite the Law Commission finding in July it was "no longer fit for purpose".
It was a decision that caused dismay across the family law community, with calls for immediate action to change administrative and systemic issues that have seen cases run on for years.
In one of the longest-running disputes, Auckland public relations practitioner Sarah Sparks and property developer Greg Olliver separated in 2012 and divorced in 2014 yet will not have a substantive hearing in their case to divide marital assets until June this year.
Aspects of the former couple's financial affairs have emerged in a number of cases in the High Court, with one Court of Appeal decision describing the split as "acrimonious".
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In the eight years since the separation, Sparks has transformed into a campaigner for change to the Property (Relationships) Act 1976.
Those actions include lobbying MPs and Ministers, speaking publicly at legal academic debates, and making submissions to inquiries, including the Law Commission's recent review of the legislation.
Asked about the case, Little replied: "Eight years - that is an outrageous length of time." He added that he did not know the details or the parties involved.
"I would expect judges to be looking very closely at (actions of parties involved) and saying, 'you know what, you've taken too long to prepare, we're just going to bring this on to a hearing'.
"I do hope judges are playing that role of blowing the whistle when there's been too much mucking around and saying 'this is going for a hearing, you're either ready or you're not but I'm going to hear it' because that's going to sharpen up the attention of the lawyers, at least, and it's amazing how they can get onto it when they really need to."
Little said he accepted the Law Commission's assessment the law was "no longer fit for purpose". "I think it's outdated."
He said his priority had been changes to the handling of parenting orders because of the effect of delays on children, while realising the Government's legislative programme meant no law change could practically happen in this electoral term.
Little said 10 new judges recently appointed included eight that would spend the majority of their time in the Family Court. He said the new Principal Family Court Judge Jackie Moran was working to streamline processes that should also cut down on delays.
Little put off making changes until the Law Commission carried out a fresh inquiry into the laws around property division when people die.
He said the proposed law change going through Parliament this term meant it made sense to deal with other aspects that were unclear, such as disposal of property after a partner died.
"When you make a change to it, you want it to be as enduring as possible."
Sparks said: "It's disappointing the minister had an opportunity to amend the law but chose to delay it further so work could be done on succession law. That's just a small component of this."
Not commenting on her specific case, Sparks said the failure to adopt administrative changes that would accelerate the process had real impacts on people going through separations.
"For me, it's a value call. Are you valuing families and children suffering longer or can you do something about it?"
Olliver did not respond to requests for comment.
A 2019 Grant Thornton-Law Society survey had most respondents citing systemic delays (46 per cent) and difficulties with discovery (42 per cent) as the greatest problems with resolving property division. Of those asked, 39 per cent of respondents cite aggressive, inexperienced or unrealistic opposing lawyers as complicating relationship property settlements.
Barrister Kirsty Swadling, also chair of the NZ Law Society's Family Law section, said the Law Commission recommendations were not "wholesale" but necessary.
"The Law Commission has put in a huge amount of effort, in terms of this report … and to have it just sitting there is disappointing."
Swadling said the most straightforward of recommendations - and immediately necessary - was to change the rules of the Family Court to match other courts. Doing so would introduce greater flexibility, and place responsibility in the hands of those dealing directly with the process of law.
The District Court and senior courts have process set by the Rules Committee, a judicial-led committee that includes the solicitor general, attorney general and practising barristers or solicitors.
In contrast, the Family Court process is governed by Parliament through regulation as an adjunct to legislation - a more cumbersome and less agile method that is difficult to change.
Swadling highlighted other areas identified by the Law Commission as needing change as the rules around discovery, which differed between the Family Court and other courts, and the section of the law that deals with resolving income disparity.
A case cited as an illustration of the difficulties of the law was one that went to the Supreme Court on which all five Justices wrote different opinions on the meaning of a section of the legislation.
"There is sufficient need and benefit to be gained by addressing this rather than waiting for some years for the further report and then deciding what to do with it."
Swadling said the number of cases that went to court to seek resolution - and through the appeal process - was very small but the process was available to all from the outset to find information that would guide settlement.
The rules on disclosure was an example Swadling pointed to that would affect a large number of people. Greater jurisdiction over trusts would also lead to a smoother separation process, she said.
"Family lawyers try to get things resolved rather than battle things out. The court needs to be there as a backstop. There would have to be money there to fund litigation and to make it worthwhile arguing about. Just arguing about a matter in principle is a very expensive thing to do."
University of Auckland law professor Mark Henaghan - who has discussed Sparks' case with her - said the Government's decision not to follow through on the Law Commission's report was "ridiculous".
He said work was needed on succession law but that didn't preclude much needed changes to relationship property law. "I think that's totally an excuse to do nothing. There's urgent issues that need to be addressed very quickly. I can't understand why it's not going straight away."
Henaghan said the section of the law relating to awards over income disparity - the section that produced five differing Supreme Court views - was among those.
A focus on discovery obligations and access to trust information was also necessary, he said.
"We're too soft on this stuff. Most people say they'll take what they can and get out of there."
Degrees of Separation divorce coach Kimberlee Sweeney said the process of separating was fraught and could become more complicated if one spouse - or their lawyer - became focused on walking away with a victory over the other side.
She said those who could not find a middle ground had a host of reasons as to why, ranging from ego and pride through to a belief they needed more than was offered to survive.
"The 'high conflict' comes into both parties not wanting to back down on their positions and that it's 'my way or the highway'. It can just be that they are hurt."
Sweeney said some clients had lawyers that appeared to escalate conflict. "I've had cases that once I've changed lawyers, they've settled in just a matter of weeks."
She said the over-involvement of family also escalated some cases, with relatives telling the separating spouse to "stand strong and fight".
The conflict scenario - rather than an agreed or mediated settlement - might only require one "very stubborn" partner refusing to settle and a "broken and exhausted" former spouse getting to court and "taking what they can get".
As an outcome, she said it meant one party was getting less than their share.
"Just get through it - find a way for each person to move on. You've got to let some things go and just accept what is."
She said that was particularly the case when children were involved with a couple needing to accept they still had to parent together.
The 19-year-old was in the first of many surgeries, her mum said.