Finally, a number of emails were sent to various contacts although many did not respond. The main source was through the law faculties of universities:
- The University Of Auckland
- The University of Canterbury
- The University of Waikato
Two Universities responded, both indicating the New Zealand Law Society. The Ministry of Justice website was also mentioned which was useful.
Part B: Comparison between Scotland and New Zealand
Introduction
A central feature of present modern society is the social acceptance of couples who choose to live together, rather than marrying or registering a civil partnership.
Religious obstacles, previous experiences, and a wish to avoid legal rights and obligations can all influence couples to cohabit, although many are not aware of the rights to which they are entitled.
This essay will consider these legal rights in both Scotland and New Zealand, focusing on the rules of intestate succession. It will present a comparison between the two jurisdictions, and in doing so will take into account factors such as the definition of a cohabitant, the legal process and the difference in rights to which cohabiting couples are entitled.
Scotland
Only recently has the position in Scotland regarding the legal rights of cohabitants been amended. This is principally through the introduction of the Family Law (Scotland) Act 2006 (henceforth ‘the 2006 Act’), which radically changed the status of unmarried couples in Scotland.
Although the Act extends a number of rights and responsibilities to opposite and same-sex couples, the main area considerably affected relates to the breakdown of the relationship, namely through a cohabitant’s death. This can be found in s.29 of the 2006 Act. This deals with the rights of a surviving cohabitant following his/her partner dying intestate. Under s.29 (2) of this act, the survivor may apply for financial provision out of the deceased’s estate - this can take the form of a capital sum or a property transfer out of the deceased’s net intestate estate. In considering a claim under this section the court must first consider certain factors, including whether the claimant fulfills the definition of a cohabitant under s.25.
New Zealand
New Zealand, like Scotland, does not have a formal written constitution. Instead, its constitutional principles are found in various pieces of legislation and in common law.
Although both countries are similar in their approaches concerning cohabitation rights, the legal position of New Zealand is somewhat more advanced than that of Scots law. From the late eighties onwards it has sought to introduce various pieces of legislation recognizing cohabiting couples, the most important being the Property (Relationships) Amendment Act 2002 (henceforth ‘the 2002 Act’). This modified previous acts so as to include ‘de facto’ relationships of opposite and same sex couples.
Definition of Cohabitant
An important difference to note between the two jurisdictions is how the characteristics of a cohabitant are defined.
As well as the definition under s. 25 of the Family Law (Scotland) Act, further factors such as the length of time in which the couple have lived together, the nature of the relationship and any subsisting financial arrangements are also considered under Scots Law.
New Zealand Law, however, expands on this. Although some factors named under the 2002 Act, such as mutual commitment to shared life, sexual relationship and public aspects could be construed as the equivalent to the Scottish definition, further criteria is also listed. Ownership, use and acquisition of property, care and support of children, and even who does the housework and other household duties also contribute in defining a ‘de facto’ relationship.
Legal Process
Another distinctive characteristic is the legal process which a cohabitant must go though, in order to claim for entitlement of their deceased partner’s estate.
In New Zealand, there are two options which a surviving spouse, civil union or de facto partner can engage in when their partner dies intestate: they can either apply under the 2002 Act for the property of the relationship to be divided according to the Act’s equal-sharing rules, or instead receive whatever they are entitled to under the rules of intestacy. This contrasts to Scots law, in which a surviving cohabitant has no option but to apply under the Family Law Scotland Act if he or she wants to make a claim.
Difference in Rights
The most significant distinction between the jurisdictions can be seen in the rights and responsibilities that a surviving cohabitant is entitled to.
Under the New Zealand rules of intestacy, the 2002 Act in effect applies the same rules relating to property division to married and unmarried couples. This means if there is no other spouse, civil partner or relative to make a claim for the deceased’s estate, the surviving cohabitant is entitled to the whole estate. If a circumstance arises in which the deceased leaves both a spouse/civil partner and a cohabiting partner, then the property is divided equally between the two.
In Scotland, however, this is not the case. Under the 2006 Act, a cohabitant’s rights are extremely limited when claiming financial provision from their intestate partner. Unlike married couples or civil partners, the surviving cohabitant is only entitled to the deceased’s net intestate estate, that is, what is left after the reduction of tax and debts etc. If there is another spouse or civil partner involved, their claim also takes precedence over the cohabitant’s, whose entitlement can never be more than what a spouse/civil partner would receive.
Conclusion
In conclusion, although both Scotland and New Zealand have taken steps to extend the rights of cohabitants, there are still noticeable differences. Some could argue that Scotland is lagging behind New Zealand as the rights of cohabitants here are still extremely limited. However, by extending these rights even further, it could discourage people from entering into a marriage or civil partnership.
Therefore, there are advantages and disadvantages to the approaches of both countries, and these must be considered carefully if Scotland is to ever consider reform in the future.
References
Books
Norrie, K., Sutherland, E., Cleland, A. Child and Family Law, (Edinburgh: Law Society of Scotland, 2004)
Norrie, K., Sutherland, E., Cleland, A. The Laws of Scotland: Stair Memorial Encyclopaedia: Child and Family Law (Reissue), Issue 4/1, (Edinburgh: Law Society of Scotland/Lexis Nexis UK Butterworths, 2004)
Thomson, J., Family Law in Scotland, (5th edition, Haywards Heath: Tottel, 2006)
Thomson, J., Family law reform: annotations to Family Law (Scotland) Act 2006, (Edinburgh: W. Green, 2006)
Journals
Atkin, B. ‘The Rights of Married And Unmarried Couples In New Zealand - Radical New Laws On Property And Succession’, Child and Family Law Quarterly, vol. 15 no. 2 (2003), pp. 173-184
Borkowski, A. ‘The presumption of marriage’, Child and Family Law Quarterly, vol. 14 no. 3 (2002) p. 251
Duncan, S., Barlow, A., James, G. ‘Research: Why don't they marry? Cohabitation, commitment and DIY marriage’, vol. 17 (2005)
Fox, L. ‘Reforming Family Property - Comparisons, Compromises and Common Dimensions’, Child and Family Law Quarterly, vol. 15 no. 1 (2003)
Guthrie, T., Hiram, H., ‘Property and cohabitation: understanding the Family Law (Scotland) Act 2006’, Edinburgh Law Review, vol. 11 no. 2, (2007), pp. 208-229
Harvie-Clark, S. ‘Family Law (Scotland) Bill: Cohabitation (updated)’, SPICe Briefing 05/13, (Edinburgh: Scottish Parliament 2005b)
Hibbs, M., ‘Why Marry? - Perceptions of The Affianced’, Family Law, vol. 31 no. 197 (2001)
Probert, R., Barlow, A. ‘Displacing Marriage - Diversification And Harmonisation Within Europe’, Child and Family Law Quarterly, vol. 12 no. 2 (2000) pp. 153-165
Probert, R., Barlow, A., ‘Reforming The Rights Of Cohabitants - Lessons From Across The Channel’, Family Law, Vol. 29 (1999)
Scottish Executive, ‘Cross-jurisdictional Comparison of Legal Provisions for Unmarried Cohabiting Couples’, Research Findings no 55/2005, (Edinburgh: Scottish Executive 2005b)
Available at: http://www.scotland.gov.uk/cru/resfinds/lsf55-00.asp
Scottish Law Commission, ‘Discussion Paper on Succession’, (August 2007)
Available at: http://www.scotlawcom.gov.uk/downloads/dp136.pdf
Wendy Parker, ‘Succession Law Testamentary Claims: A Discussion Paper’ (August 1996)
Available at: http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_41_110_PP24.pdf
Wendy Parker, ‘Family Futures: Issues in Research and Policy’, (July 2000)
Available at: http://www.aifs.gov.au/institute/afrc7/parker.html
New Zealand Ministry of Justice, ‘Relationship Property: A Guide to the Law’
Available at: http://www.justice.govt.nz/pubs/reports/2001/relation_property/matrimonial_book.pdf
Websites
Findlaw (Website)
Available at: http://www.findlaw.com
Accessed: 10/11/07
Gilbert and Swan Solicitors, (Spring 2001), ‘Property (Relationships) Amendment Act 2001’ (WWW Document)
Available at: http://www.gilbertswan.co.nz/resources/GilbertSwan-newsletter-Spring2001.pdf
Accessed:
Google (Search engine)
Available at: http://www.google.co.uk
Accessed: 10/11/07
Lycos (Search engine)
Available at: http://www.lycos.co.uk
Accessed: 10/11/07
Ministry of Justice (Website)
Available at: http://www.justice.govt.nz/
Accessed: 15/11/07
New Zealand Law Society (Website)
Available at: http://www.nz-lawsoc.org.nz/
Accessed: 15/11/07
New Zealand Google (Search engine)
Available at: http://www.google.co.nz
Accessed: 12/11/07
University of Auckland (Website)
Available at: www.law.auckland.ac.nz/
Accessed: 12/11/07
University of Canterbury (Website)
Available at: www.laws.canterbury.ac.nz/
Accessed: 12/11/07
University of Waikato (Website)
Available at: www.waikato.ac.nz/law
Accessed: 12/11/07
Yahoo (Search engine)
Available at: http://www.yahoo.co.uk
Accessed: 10/11/07
Westlaw, Heinonline and LexisNexis: Accessed via the law link in Strathclyde University electronic library services – Athens password required
Cases
Public Trust v Whyman 2005 NZSC 12 (Accessed via Westlaw)
Accessed through the law link in the Strathclyde electronic library services: Athens password required
Thomson, J., Family Law in Scotland, (5th edition, Haywards Heath: Tottel, 2006), pp. ; Thomson, J., Family law reform : annotations to Family Law (Scotland) Act 2006, (Edinburgh : W. Green, 2006)
Heinonline, Lexisnexis and Lawtel (See notes 7-9)
University of Auckland; University of Canterbury.
http://www.nz-lawsoc.org.nz/
http://www.justice.govt.nz/
Family Law (Scotland) Act 2006
Now includes the right of financial provision when cohabitants separate or one of them dies.
The size and nature of the estate; Any benefit received by the cohabitant as a result of the death; Any other claims on the estate and; Other matters the court considers to be appropriate.
A person who is, or was, living with another person as if they were husband and wife, or two persons of the same sex who are or were living together as if they were civil partners.
E.g. the De Facto (Relationships) property Bill 1998
New Zealand term for cohabiting couples
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