Dialogue: Children suffer most from legal deprivation

By CATRIONA MacLENNAN8

Children appear to be the forgotten element in the debate over matrimonial and de facto property laws.

The Government plans to extend matrimonial property laws to cover de facto couples, and give the courts discretion to vary the 50:50 property division when it disadvantages one party.

National and Act MPs have condemned the proposed changes, saying they will be a charter for gold-diggers.

What seems to have been completely overlooked is the damage the current law inflicts on children. Condemning women to economic hardship and poverty at the end of relationships means condemning children to the same fate.

At the end of a marriage or a relationship, it is almost invariably the case that children will remain in the care of their mother. If the relationship has been a de facto one, there are few financial protections for the mother and children. Despite a widespread misconception to the contrary, there is no 50:50 split for de facto couples' property after three years.

Unless the father agrees to split property, the woman will need to bring a lengthy and expensive case to try to establish a claim based on a constructive trust. This will succeed only in limited circumstances.

If the parties have been married, the normal rule is that property will be split 50:50. However, the most valuable asset of the parties is normally future income-earning capacity, and the wife is not entitled to share in that.

One of the main ways in which our society rewards achievement is through financial return. Despite lip service to the valuable role of parents who stay at home to raise children, that is not recognised in financial terms.

Consider the following inequitable outcomes of our current laws:

* After a five-year de facto relationship, a couple was married for two years before separating. As the marriage was one of short duration, the 50:50 split under the Matrimonial Property Act did not apply. The parties had agreed at the beginning of the relationship that the woman would run the house and raise their child. The house was in the husband's name. On separation, the man was earning $200,000 and offered the woman a total of $15,000.

After separation, the woman and child moved into a flat which, at first, had no furniture at all. Later, they obtained one bed, which they shared.

The five years before marriage were not taken into account by the law and the house was the only item of property in New Zealand. The woman went to court and got $27,000. The man was happy to pay $24,000 in legal fees to his lawyer to avoid paying the woman any more.

If that $24,000 had, instead, been spent on the child, it could have made a major difference to his upbringing and assisted with his education.

* A couple separated after a lengthy marriage, the four children remained in the care of the mother. Her income after separation was to be around $14,000 a year, while the father's was to be $110,000. He immediately went out and bought a sports car. The women and children were able to remain living in the matrimonial home for a further 18 months, but only because the husband agreed to it.

Although the law is supposed to protect the interests of children, in practice judges continue to apply the clean-break principle which results in the home being rapidly sold. This greatly increases the disruption for children. The woman is normally not in a position to buy a home on her own, meaning that the family may move to a series of rented homes and the children may shift schools.

* A de facto couple of 11 years separated. The woman had run the home and looked after the children, freeing the man to work in his profession and earn a good income. He had three properties and she had no claim to any of them.

* A couple separated after a lengthy marriage. Despite the property issues being relatively straightforward, the man spent $30,000 on lawyers fees to ensure the woman did not receive one cent more than her legal entitlement.

Once again, that money could have been of great benefit to the children.

The proposed law changes are well overdue. Far from being a gold-diggers' charter, they will go some way towards redressing the gross financial inequities at present suffered by those who take on primary childcare roles.

That will, in turn, benefit children, who suffer enough stress and confusion when their parents separate without adding financial deprivation.

It is a pity that some male MPs and fathers do not recognise this.

* Catriona MacLennan is a barrister acting for Nga Ture Kaitaki Ki Waikato Community Law Centre in Otahuhu.