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General

Marriage, divorce, death – but strictly in that order

Section 182 of the Family Proceedings Act 1980 (FPA) can be considered a vexing piece of legislation in that it has application only for spouses and civil union partners. Whether this will continue to be the case may become apparent following the outcome of the ongoing five year review of relationship property and related legislation. In the meantime s 182 of the FPA affords a discretionary remedy with respect to nuptial settlements following the dissolution of a marriage  or civil union.

What can comprise a nuptial settlement was considered at length by the Supreme Court in Clayton v Clayton. The recent decision in Thakurdas v Wadsworth appeals a decision of Judge Burns in the Family Court, who found that executors can bring proceedings under s 182 of the FPA. Hinton J has upheld Judge Burns in a decision that usefully canvasses s 17 of the Matrimonial Causes Act 1965, the United Kingdom equivalent of s 182. Paras [49]-[65] provides background by reference to relevant United Kingdom cases and warrants close consideration regarding the exercise of discretion under s 182. In this regard it is important to note that, as confirmed in the case at hand, s 182 is not a cause of action as it does not provide entitlement to relief, but rather invites the Court to exercise its discretion (see [17]).

While the Court found that executors can bring proceedings under s 182, the result will depend on the exercise of discretion. As noted,  such an application is only available where there has been a marriage or civil union and necessarily requires dissolution as a pre-requisite.

Clearly for all the progress of recent decades to bring alignment between the rights of relationship parties regardless of whether married, in civil union or in de facto relationships, and indeed whether formally divorced or not, apparent inequities remain unresolved. Attention to this issue is warranted.

Editor’s note:  leave has been granted to appeal this decision.

References

  • Thakurdas v Wadsworth [2018] NZHC 1106
  • Wadsworth v T [2017] NZFC 5833
  • Clayton v Clayton [2016] NZSC 30

 

 

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