The family residence, isolated on its own section and owned by the occupier, has always been typical of the physical and social urban scene in New Zealand. While flats are not uncommon, almost all couples with children live in a detached one-family house, usually single storeyed. The attachment to home ownership among all classes is seen in the number of State houses purchased by tenants (15,787 out of 58,000 built up to 1961) and in the recent popularity of owner-occupier flats. In 1956 two-thirds of inhabited private dwellings were owned by the occupier.
The law, however, has given only tardy and incomplete recognition to the special character of the family home as the secure and joint possession of husband and wife. Indeed, joint ownership was in the past discouraged by the imposition of gift duty on any transfer from husband to wife of a share in the matrimonial home. This state of things resulted from the approach taken towards married women's property rights. Under the common law, husband and wife were one person, but title to and control of property were vested solely in the husband. One reform would have been to preserve this principle of unity but to give married women equal rights in the ownership and disposition of the common property. This system, known as community property, exists in California and some other places. However, the Married Women's Property Act of 1884 treated the spouses for property purposes as strangers, thereby continuing to deny the wife security in the matrimonial home.
In 1895 a Family Homes Protection Act enabled the owner to settle a dwellinghouse as a family home during his life and until his children reached the age of 21. This gave protection against creditors, but, partly because no home so settled could be mortgaged, the Act was almost a dead letter. A new and successful approach was made by the Joint Family Homes Act of 1950. Under this legislation a house and land used principally or exclusively as a dwelling may be settled as a joint family home. It becomes the joint property of husband and wife, passing to the survivor on death. The home is protected against creditors, other than mortgagees, to the value of £2,000. No gift duty is payable on the settlement and no estate duty on the value of a share up to £3,000.
The use made of the Act has been increased since 1958 by the policy that capitalisation of the family benefit will be allowed only where the home is owned by the wife or settled as a joint family home. Nevertheless, by 1961 only 73,000 out of over 700,000 private dwellings had been settled. Owner-occupier flats cannot become joint family homes.
The Matrimonial Proceedings Act of 1963 allows the Court, on granting a divorce or separation, to take into account the wife's non-monetary contribution to the family home by making an order for possession in her favour or an order for sale and division of the proceeds between the parties. The Court also has power to vest the tenancy of a rental house in the other party. These provisions give practical recognition to the wife's moral claim to a share in the home.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.
- New Zealand, the Development of its Laws and Constitution, Robson, J. L., ed. (1954)
- Family Law in New Zealand, Inglis, B. D. (1960).