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The Tension Between Private Property and Relationship Property in Rural New Zealand [2007] JSPL 9; (2007) 11(1) Journal of South Pacific Law 4

THE TENSION BETWEEN PRIVATE PROPERTY
AND RELATIONSHIP PROPERTY IN RURAL NEW ZEALAND

NICOLA PEART ^[∗]

Purpose of paper

This paper is in the early stages of development. It deals with my growing concern about the effect our new relationship property legislation may have on the economic viability of farms. While farms are not the only business at risk from the new legislation giving rights to married and unmarried partners on separation and on death, they are uniquely vulnerable because they combine the family, the home and the business in one entity.

The ideas and concerns expressed in this paper are preliminary only. My purpose in putting these ideas forward at this time is to obtain some initial comment on the validity of my concerns and to ascertain whether, and if so how, other jurisdictions take into account the consequences of relationship property rights on the economic viability of private enterprise. Has New Zealand gone too far in allowing relationship property rights to override legal title?

This paper will start with a very brief description of farming in New Zealand and the changing family structures that many jurisdictions now face. It will then outline the development of matrimonial property legislation in New Zealand in the 20^th century before explaining the changes to this legislation made in 2001. While there is not much case law as yet, some decisions have already affected farms and these will be explored.

INTRODUCTION

New Zealand has traditionally been a farming country. Agriculture of one sort or another has been and remains the backbone of the New Zealand economy. It is still a major export earner for New Zealand. Legislation that threatens the rural sector will therefore affect the economy of this country.

Farming in New Zealand
Farming in New Zealand has traditionally been a family business. Husband, wife and children were all expected to contribute in some way to running the farm. In return, they received accommodation, food and a (modest) income from the farm. Daughters commonly married, leaving the farm and ceasing to be the financial responsibility of their parents. Sons, on the other hand, often remained on the farm, working alongside their father. In due course they would either take over the farm from their father or, if the farm was not large enough to sustain all of the sons who wanted to farm, they would be assisted by their father to buy their own farm. Father and mother would continue to live on the farm and be sustained by it, but would gradually reduce their involvement in working the farm. That is still largely an accurate description of farming in New Zealand today.