Story: Divorce and separation
Page 4 – Maintenance and the division of property
From the 19th century laws governing divorce, matrimonial property, desertion, and state support for families were based on a division of responsibility and behaviour. Husbands owned family property and money, and were responsible for supporting wives and children. Wives kept house, had and reared children, and looked after a family’s day-to-day needs.
Judges’ belief in these family roles was spelt out in their judgements and reflected in divorce settlements.
In the 19th and early 20th centuries, when desertion was far more common than divorce as a way of ending a failing or unwanted marriage, wives relied for support on family or close friends, or on paid employment.
Some women were poverty-stricken and forced to seek charitable aid from hospital boards or church organisations. Often given reluctantly, it came with requirements of home inspections and reports on housewifely ability.
A wife or charitable-aid board could take a man to court for not supporting his family, but that meant finding him. Not only was vanishing relatively easy, but many wives did not want their husbands home. One charitable aid worker reported that many deserted women told him, ‘Do not send for my husband; we starve in peace when he is away, but we starve in misery when he is home’.1
Wives could go to the magistrate’s court and get a maintenance order. Many did so – in the mid-1890s, 60% of the Wellington magistrate’s court business involved deserted wives seeking maintenance and protection orders.
Maintenance after divorce
When divorcing, a woman had to prove her husband at fault to get maintenance. If the amount later proved too little, judges were unlikely to increase it. Instead, they often suggested the woman give children of the marriage to their father. Failure to pay maintenance was common.
After the Family Proceedings Act was passed in 1980, each party became responsible for providing for the other’s reasonable needs if that person could not do this for him or herself. In practice, it remained women who sought maintenance. Grounds on which it could be claimed included childcare responsibilities and the effect of the division of functions within a relationship. Maintenance was awarded for a limited period – people were expected to move toward maintaining themselves.
In the 2000s spousal maintenance was less common. The process of applying for it was expensive, the results uncertain. Maintenance orders were sometimes ignored, requiring further legal action.
Deserted wives with children gained conditional access to a widow’s benefit with the passing of the Pensions Amendment Act 1936. From 1954 a minority of deserted women could get a widow’s benefit after divorce. Other deserted, separated or divorced women could apply for an emergency benefit, with eligibility assessed on a case-by-case basis. If a woman was the 'guilty' party in a marriage's breakdown, support would be refused. From 1973 deserted, separated or divorced women became entitled to the domestic purposes benefit.
Division of property
Over time there has been a shift from maintenance towards division of property. The property available for division during divorce has also changed. At first it was the family home; then family home and chattels; from 1976, family home, chattels, and business or farm acquired during marriage; and from 2002, future earnings were considered.
In the 19th century and first half of the 20th century, property division was straightforward. Husbands owned property acquired during marriage, and it remained theirs after divorce. After the Second World War, women’s monetary contribution to property began to increase. Joint family homes legislation and state home financing meant that many homes were in the name of both husband and wife. More husbands found their right to property challenged by wives when divorcing.
Financial contributions didn't always count when judges decided who owned the family home. Mrs Masters, of Rata Street in Wellington, had paid all the interest on the first mortgage and the interest and principal on the second, plus the rates and insurance. She earned money by keeping boarders, working as a cleaner, selling her knitting, and taking in washing. Although she could prove her contribution to the family home and finances, when she and Mr Masters divorced in 1954, he was given title to the family home. She had the right to live there, but only while she remained single.
Contribution to marriage
From 1963 judges were able to consider non-financial contributions to marriage when dividing property. They were strongly inclined to favour husbands, who continued to retain or be given sole ownership of the family home and its contents.
Equality promised, 1976
The purpose of the Matrimonial Property Act 1976 was to recognise the equal contribution made by husband and wife to marriage. It also extended the property available for division. Businesses, investments, money or farms, if acquired during the marriage, were added to the family home and its furnishings.
At first husbands continued to receive a greater share in the family home and contents, and almost all of other assets. Over time, more equal distribution became normal.
Division of property since 2002
Since 2002 division of property when a marriage, de facto relationship (same-sex or heterosexual) or civil union breaks down is organised according to the Property (Relationships) Act 1976 as amended in 2002.
The act divides property into two categories: relationship and separate. Relationship property – the family home and furnishings, and usually other property bought during a relationship – is available for division. Separate property is not. Relationship property is divided equally. If one partner’s ability to earn a living has been reduced as a result of the relationship (because of childcare responsibilities, for example), they may get a larger share of assets or a lump sum.
The act applies to all marriages and civil unions, but the equal-division rules are softened for those that end within the first three years. It does not usually apply to de facto relationships until they have lasted three years or more. There are exceptions to this. If children are involved the act may be used. If one partner has made a substantial contribution and serious injustice would result from not applying the act, then a court order based on it can be can made.