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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:  the decision was upheld on appeal.  The Court of Appeal made a number of useful points regarding s 182 at [11]. These included the observation that the Family Court’s jurisdiction with respect to s 182 does not arise on application and that the legislation “appears to envisage that the Court may act on its own initiative in the interests of the parties, or their children …”

The Court of Appeal also noted that the subject matter of the s 182 jurisdiction is “any agreement for the payment of maintenance or relating to property; or any nuptial settlement.  If an agreement, it must be between the parties.  If a nuptial settlement, it must be made on the parties.”

The Court of Appeal went on to find that the jurisdiction is not personal in nature and does not abate on the death of a party.  However, it does not follow that anyone may apply under s 182.

Importantly, as noted at [16] “We add that it is now settled law that s 182 serves an important purpose in relationship property litigation, allowing courts to address property settled under nuptial trusts. The Supreme Court has held that s 182 empowers a court to review a settlement and remedy the failure of the premise — an enduring relationship — on which it was founded, ensuring that one party does not benefit unfairly at the expense of another. It would be inconsistent with that approach to invariably preclude any claim by the personal representatives of a deceased former spouse.”

References

  • Thakurdas v Wadsworth [2018] NZHC 1106
  • Wadsworth v T [2017] NZFC 5833
  • Clayton v Clayton [2016] NZSC 30
  • Thakurdas v Wadsworth [2018] NZCA 516

 

 

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