July 2010 - Have you left it too late to do a Prenup?
The following articles were written by Colin Abernethy:
It is common for couples to contribute different amounts when purchasing their first family home. Many think that a prenup (aka “Contracting Out Agreement”) would be a good idea to preserve their respective contributions as their separate property (just in case the relationship doesn’t last, or there may be children from a prior relationship to consider). Purchasing a property however can be a busy and stressful (not to mention expensive) time and having the awkward prenup conversation is often put in the too hard basket.
The problem is that time flies, and the longer it’s left, the more expensive the process can become. If a prenup is on the cards try and see a family lawyer and have the Agreement completed well within the first 3 years of the relationship. If the Agreement is securing an inheritance payment, gift or a distribution from a Trust as separate property, try to complete the Agreement before you receive the funds (if possible) or immediately upon their receipt.
The equal sharing provisions of the Act apply once the parties have been in a qualifying relationship (de facto / marriage / civil union) for 3 years. The family home (if owned by one or both of the parties) is without doubt one of the assets to which the equal sharing provisions apply.
What advice do you need?
Both parties to a prenup require independent legal advice. A lawyer is required to give their client their professional opinion as to the fairness and appropriateness of the Agreement as well as explaining its effects and implications. More than a mere explanation of the terms of the Agreement is needed. What is required is an informed professional opinion as to the wisdom of entering into the Agreement in the terms proposed.
Why will it be more expensive if you leave it for a while?
The increase in expense will be based on the increase in time that your lawyer needs to take to give you the requisite advice and complete their certification. If a couple has been together for 3 years (and they haven’t done a prenup), both will usually be entitled to a half share of the family home whenever it was purchased and regardless of any unequal contributions.
The lawyer who represents the party who has contributed less (but by virtue of the length of the relationship is now entitled to a half share) will likely advise against signing the Agreement as it will usually mean signing away a large sum of money to the other party.
Rather than a 1 to 2 hour meeting for independent legal advice, multiple meetings may be required, with the solicitor’s advice being put in writing to the client as well as the verbal recommendation against signing.
This is not to suggest that if a couple has been together for longer than 3 years a prenup is no longer possible. In theory it is never too late to do a prenup (so long as the relationship has not ended) but the longer a couple waits, the more expensive the process will become.
If you are purchasing a property with your new partner, your respective contributions are unequal and you want to enter into a prenup, try to sort it out at the time of purchase. If you want to keep an inheritance, a gift or a distribution from a Trust as your separate property then try and sort out the prenup prior to (if possible) or immediately upon receipt of the payment.
The prenup conversation can certainly be an awkward one, but the earlier you have it, the quicker and cheaper the process should be.
July 2010 - What is "Domestic Violence"?
Pursuant to the Domestic Violence Act 1995 “domestic violence” means any “violence” against a person by any other person with whom that person is, or has been, in a domestic relationship.
“Violence” means:
(a) Physical abuse (e.g. punching, kicking, pushing, holding down);
(b) Sexual abuse (e.g. rape);
(c) Psychological abuse which includes, but is not limited to:
(i) Intimidation;
(ii) Harassment;
(iii) Damage to property;
(iv) Threats of physical abuse, sexual abuse, or psychological abuse;
(v) In relation to a child, abuse of the kind set out below.
A person psychologically abuses a child if that person:
(a) Causes or allows the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has
a domestic relationship;
(b) Puts the child or allows the child to be put, at real risk of seeing or hearing that abuse occurring; - but the person who suffers
the abuse is not regarded as having caused or allowed the child to see or hear the abuse, or as the case may be, as having
put the child, or allowed the child to be put, at risk of seeing or hearing the abuse.
A single act may amount to abuse. A number of acts that form part of a pattern of behavior may amount to abuse, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial. Behavior may be psychological abuse including such behavior which does not involve actual or threatened physical or sexual abuse.
If you are the victim of domestic violence, please contact a family lawyer immediately. If you are in immediate danger, please contact the Police. There are a number of legal options available to victims of domestic violence including a Protection Order (if such an Order is necessary for the victim’s protection) and a Police Safety Order (from 1 July 2010).
May 2010 - New Powers For Police - On The Spot Protection Orders
On 1 July 2010 the Police will have new powers to issue “Police Safety Orders”. A person against whom t he Order is issued (“the Respondent”) must immediately surrender to a Constable any weapon in his or her possession or control, together with any firearms licence and must vacate any land or building occupied by a “person at risk”, whether or not he or she has a legal or equitable interest in the land or building. The Respondent will have to leave the residence even if they own it, or it is a joint family home or a flat in which they and or the other party resides.
The duration of the order is within the issuing Constable’s discretion however that period must not exceed 5 days.
In addition to suspending any firearms licence the Respondent might have, a Police Safety Order also suspends any Parenting Order between the person at risk and the Respondent in respect of any child residing with the person at risk.
Another major effect is to impose comprehensive restrictions upon the Respondent’s behaviour towards a person at risk. A person at risk can be either the complainant or any child residing with the complainant. Once an Order is issued, as well as vacating the property, the Respondent must not physically or sexually abuse or threaten to abuse a person at risk, damage or threaten to damage such a persons property or in any way harass them, including watching, loitering or following a person at risk to their place of residence, business or any other place that the person frequents. There is also a complete prohibition against any contact between the Respondent and the person at risk which includes any form of electronic messaging (except such communication as is reasonably necessary in an emergency).
Whilst the scope for a Police Officer to justify an order is very wide, an order can only be made by a “qualified Constable”, that is, a Police Officer holding the rank of Sergeant or above. As a consequence junior Constables will be required to request authorisation from a more senior Officer before issuing an Order. The new law provides for a period of up to 2 hours in which a Respondent may be detained whilst a junior Officer seeks authorisation from a Sergeant. This detention is valid even if the Order is not eventually issued and its breach is an offence punishable by a fine of up to $500.00. In terms of the Order itself, if the Respondent refuses or fails to comply with its terms, the Constable may take the person into custody or execute a warrant for the person’s arrest issued by a District Court Judge. If an Order is not complied with it is also likely that a Temporary Protection Order will be imposed upon the Respondent provided the person whom the Order is to protect does not object.
A qualified Constable may issue a Police Safety Order against a person who is or has been in a domestic relationship with another person if the Constable does not arrest that person for an offence and has reasonable grounds to believe that an issue of an Order is necessary to ensure the safety of a person at risk. This is a significant development in New Zealand’s domestic violence legislation and provides the Police with the ability to ensure the immediate safety of victims of domestic violence by removing the alleged violent person from the home. The Police will be able to issue the orders in situations where there is an insufficient basis to arrest, but where they believe there is a likelihood of domestic violence occurring and that an Order is necessary for the safety of the victim.
There are concerns with these new Police powers. Unlike comparable Australian legislation, there is no appeal mechanism to challenge the grant of a Police Safety Order. In effect there is no natural justice being offered to the Respondent when a Police Safety Order is issued and it seems any arguments against the issuing of a Police Safety Order will only be taken into account if the Constable considers those arguments “relevant” or if hardship may be caused if the order is issued. The Respondent will only have the opportunity to argue his or her defence at the time.
If the maximum 5 days is imposed, this could seriously disrupt an orderly shared parenting arrangement and have undesirable consequences for a child who would normally be looked after by the Respondent. That being said, the Police have indicated that a Respondent would only be forced to vacate the premises for 5 days in extreme circumstances and most would only be issued with a 48 hour vacation Order to “cool-down”.
Despite the criticisms, it is clear that action had to be taken to address New Zealand’s ever present domestic violence problem.
If a Police Officer deems it appropriate to issue a Police Safety Order, it is likely that such Order would form the basis of an Application for a Temporary Protection Order in the Family Court.
If your safety or the safety of a member of your family is under threat, call the Police immediately. Regardless of whether an offence has been committed, from 1 July 2010 the Police will have the ability to provide immediate safe guards in situations involving domestic violence. In addition, if you or a member of your family is the victim of physical, sexual or psychological abuse, contact a family lawyer as soon as possible. All of the discussions with your lawyer are completely confidential and it is of primary importance that you and your family are safe at all times.
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