Judicial policy in the division of property under the Matrimonial Property Act 1976

Abstract

The institution of marriage has always provided a basic form of social and economic ordering within a society. The family, as a social unit, has traditionally operated within the framework of marriage and laws devised within that framework have sought to specify the obligations of family members in their relationships with each other. Those obligations have traditionally centred on two important areas: the nurture of children and care of the home and the acquisition of property and income. Legal marriage has thus been the structure upon which the laws governing such obligations have been raised. Yet those laws are themselves a reflection of any society's perception of the marriage relationship. This is particularly true of the laws governing the property relations between the spouses. The way in which the capital assets of a marriage are reallocated following its breakdown reflects a set of fundamental assumptions and values about the family and relations between the sexes. Gray has pointed to the crystal ball nature of the matrimonial property laws of a society and stated that Matrimonial property law in New Zealand today has created a definition of marriage by its inherent philosophy that marriage is a partnership of equals. The forces which have shaped that concept have sprung from ideologies of the past yet its application must reflect the social realities of the present.