Divorcing rhetoric from reality: A law reform and policy perspective on section 15 of the Property (Relationships) Act 1976

Abstract

Section 15 of the Property (Relationships) Act 1976 was passed in 2001 as a substantial and controversial reform to New Zealand’s relationship property regime. Despite the laudable ambition of remedying significant economic disparities between separating spouses, civil union and de facto couples through s 15, this has failed to materialise. Section 15 has introduced uncertainty and inconsistency into what is otherwise a clear, rules-based regime.

This paper provides a law reform perspective on how s 15 came to be an illustration of poor law reform. It argues the substance of the provision cannot be critiqued in the abstract, as the difficulties of s 15 are directly linked to deficiencies in its reform process. It unravels the procedural, conceptual and judicial challenges to this reform. Key players in s 15’s reform were constrained by the political environment, and were required to make trade-offs to effect reform in the circumstances. Section 15’s policy direction created conceptual tensions with the broader statutory scheme. The courts have struggled to play an effective role in the application and development of s 15 due to inadequate guidance and a reluctance to depart from the imbedded foundational principles of the Act. It is argued that these challenges to s 15 reveal broader impediments to law reform in New Zealand. Many of the identified challenges ought to be taken into consideration if s 15 is to be the subject of further reform in the future.