Our divorce laws are 40 years old – and there’s a renewed push to change them to reflect the realities of the 21st Century 

The biggest ever spike in divorces in New Zealand came in 1982.

Between 1980 and 1982 the number of divorces per 1000 married couples nearly doubled – and this is probably because in 1981, New Zealand introduced new legislation regarding divorces.

Prominent divorce lawyer Lady Deborah Chambers says prior to this, getting a marriage dissolved was a tedious and often bitter process.

“The main ground people relied on was adultery,” Chambers says.

“You had to give evidence of adultery. They used PIs, what they saw, following people around. Absolutely horrendous.

“It seems button-up boots, doesn’t it?”

Late last month, National MPs Chris Bishop, Simon Bridges and Chris Penk met with a woman named Ashley Jones to accept a petition from her.

Jones is asking for the divorce laws to be changed – the first meaningful change the legislation will have seen since they were given royal assent.

Today on The Detail, Emile Donovan sits down with Chambers to discuss what the divorce laws are, as they stand; how sensibilities around marriage have changed in the past 40 years; and what this petition is asking for.

Divorce laws are different from property division laws, which are dictated by the Property Relationships Act. Those rules are much more complicated than the legislation governing divorce, which is one of the reasons a review of them started a couple of years ago has got nowhere.

When it comes to splitting up, it’s pretty straightforward – two years after one person makes it clear they want to leave the marriage, they can be granted a divorce. Chambers says there’s only one ground for dissolution of marriage – “it is irreconcilable breakdown of marriage, and that is proved by one thing, and that is living apart for two years”.

There is provision for judges to make sure that children are properly provided for, and they can refuse to grant a divorce if they feel they aren’t, but it’s not applied often.

In recent years the divorce rate has held pretty steady – in 2019 the rate was about 8.6 per 1,000 marriages failing – the same as it was in 1979. That compares to 17 per 1,000 in that big 1982 year.

But the number of marriages has plummeted. From a peak in 1975, when there were 45 weddings per 1000 eligible people, the number has dropped to fewer than 10.

Why retain marriage as a social structure, other than for religious regions?

“Marriage is a legal structure, and that is why we have legislation around when you can end it,” she says.

“It’s a legal structure that the state supports for a whole series of policy reasons, and it is in place no doubt previously for religious reasons, but it is a legal contract.”

Historically the key reason for that state support has been the protection of children – the policy supports couples staying together so children have a structure where they are loved and fostered, and have the best financial structure available, to enable them to grow into financially independent members of the community.

“To be fair I think it was also seen as protecting women, who were seen as more vulnerable – certainly financially – once they started having children.

“Nowadays, marrieds and de-factos are very similar. The only real differences are that you have more of an ability to get into trusts if you’re married … and (in practice) I think you have a stronger claim to the estate under the Family Protection Act if it is a marriage rather than a de-facto relationship, because the court will just assume that the deceased person intended to be in this legal partnership. The other aspects are really more informal – you’re viewed differently by society.”

Want more from The Detail? Find past episodes here.

Leave a comment