Marriage and family have been the focus of much attention, and change in this area has been substantial. From the mid-19th century broad social and economic shifts, together with the sustained efforts of committed women and men, expanded legal and financial equality for married women. Legal discrimination against unmarried mothers ended in the late 20th century, and against people in de facto relationships in the early 21st century.
Marriage in the mid-19th century
In colonial New Zealand most Pākehā women needed to marry – few could earn enough to live independently. The high rate of marriage among women (well over 90% for most of the 19th century), and the increasing rate among men as more women arrived in New Zealand, made it strongly influential on women’s lives.
In the mid-19th century a married couple was a single financial and legal entity, controlled by the husband. All of a wife’s money and property, whether acquired before or after marriage, was her husband’s. A wife had no right to a share of her husband’s (or their joint) earnings or property during marriage, or to part of his estate after he died.
Divorce was virtually unobtainable, and fathers had legal authority over children.
Home ownership was near-impossible for married women before 1884, as husband and wife were one legal entity, controlled by the husband. It remained unusual for married women to own property for decades afterwards. Women’s rights activist Margaret Sievwright was backed by her husband William, who put his money where his mouth was. When they bought their family home in 1884, the year the Married Women’s Property Act was passed, it was put in Margaret’s name.
Property and money
Parliament passed laws in 1860 and 1870 improving the position of wives deserted by their husbands, and in 1867 allowing divorce. In 1884 the Married Women’s Property Act gave women within marriage a legal existence for the first time: it let them hold property, make contracts in their own right, and sue and be sued.
In the 20th century the position of unmarried mothers and women in de facto relationships was also addressed. The transfer of family property to a widow was made easier (1950), and fathers’ support of unmarried mothers and their children was legislated for (1968).
Support for women’s financial independence within marriage developed slowly. From 1946 to 1991 the family benefit was paid to all mothers. For many of those not in paid work, it was the only personal income they did not have to ask for. In 1977 wives got their own old-age pension, and from 1986 they were paid half of the couple’s unemployment benefit.
Divorce and custody
Some of this legislation recreated or allowed continued discrimination. Divorce became possible in 1867, but while a wife could be divorced for a single act of adultery, a woman could divorce a man only if his adultery was combined with cruelty, desertion, bigamy, incest, rape, sodomy or bestiality. Grounds for divorce were equalised and extended in 1898.
From 1976 wives were entitled to half the matrimonial property when a marriage ended, recognising women’s non-financial contribution to marriage. In 2002 these provisions were extended to de facto and same-sex relationships of at least three years.
In the mid-19th century a father’s right to the children of a marriage was absolute. By the 1970s, when couples divorced or separated, judges almost always awarded day-to-day custody of children to their mother. From the 1980s some men began arguing that this presumption in favour of mothers meant that they were being discriminated against.
In the early 21st century, parents who were separating were encouraged to negotiate arrangements for the care of their children. Often these arrangements involve shared care of children, even if they spend more time with one parent. Parenting Workbooks are available to parents to help them work out what arrangements will best suit them and their children. Most arrangements for the care of children are made without involving the Family Court. Parents are encouraged to set up arrangements that enable children to continue to have ‘loving relationships with both parents as much as possible’.
Since changes to the Family Court in 2014, a range of options have been available to parents who cannot agree on how they will care for their children when they separate. They can attend a ‘Parenting through Separation’ course, use the Family Disputes Resolution system, or apply to the Family Court for a decision about the care of the children. Only a small number of parents apply to the Family Court for decisions about day-to-day care of their children and contact arrangements for parents who are not day-to-day caregivers.
Māori celebrated sexuality, talked openly about sex, and accepted that sex before marriage occurred. The exception was puhi (high-born women) destined for political marriages. European explorers and settlers commented on the differences between Māori and non-Māori views on female chastity. A ‘double standard’ governed sexual activity among European settlers, slowly decreasing in strength in the later 20th century. Men’s sexual activity outside marriage was much more acceptable than women’s. Women who had sex before marriage or with partners other than their husbands were stigmatised. Blame for prostitution and illegitimate births was laid squarely on women. Missionaries brought these ideas about sexuality to Māori communities. Sexual violence and sexual harassment were common, but were seldom discussed or reported.
Marital rape was not a crime and wives did not have the right to refuse their husbands sex. Until the 1960s, they had no independent access to effective contraception. Domestic violence was common, and in the 19th and early 20th centuries was seen by many as a man's right. Before 1896 the age of consent was 12, allowing men to take advantage of girls. Prosecution, let alone conviction, for rape was rare, and incest was not a crime.
The age of consent was raised to 16 in 1896, and incest was criminalised in 1900. The gap between the law and life remained wide. As any prosecution for sex with an under-age girl had to be brought within one month of the offence, the law was little more than an ineffective threat. Incest, like other forms of sexual violation, continued to have a low reporting rate.
The first legal measure aimed at protecting women from violence by male partners came in 1982, and in 1985 marital rape became a crime.
By the early 21st century there had been several major updates to the laws on violence against women. Yet around one in three (35%) of ever-partnered New Zealand women reported having experienced physical and/or sexual intimate partner violence. All forms of violence against women continued to be under-reported and conviction rates remained low.1
Contraception and abortion
Information about contraception became increasingly available in the 1960s. The female contraceptive pill arrived in 1960, and over time revolutionised control of reproduction. Abortions remained difficult to obtain until 1974, when the Auckland Medical Aid Clinic opened. From 1977 the Contraception, Sterilisation, and Abortion Act controlled access to abortion, and clinics opened in other centres. It became legal to have an abortion if two certifying consultants (doctors) agreed that continuing the pregnancy would result in serious danger to a woman’s mental or physical health. Most abortions in New Zealand are certified on the basis of a serious danger to a woman’s mental health. Abortion services are free for pregnant women who are eligible for funded health care.
In the early 21st century most abortions in New Zealand are certified on the basis of serious danger to a woman's mental health. Abortion services are free for pregnant women who are eligible for funded health care. However, the regulation of abortion continues to be controversial. Right to Life New Zealand challenged the Abortion Supervisory Committee’s management of abortion in the courts in 2008. A Court of Appeal judgement in 2011 found that the Abortion Supervisory Committee could not review a certifying consultant’s decision and that there was no foetal right to life as Right to Life New Zealand claimed.
In 2014 the Family Planning Association claimed that New Zealand law was outdated and that abortion should be managed like any other health service. During the 2017 election campaign, Labour leader Jacinda Ardern stated that abortion should be removed from the Crimes Act and that women should be able to make their own decisions about terminating their pregnancies.