Grounds for divorce
Divorce in New Zealand was fundamentally altered when Parliament passed the Family Proceedings Act 1980, which came into force the following year. Until then the process had been concerned with finding out who was at fault. The new law focused instead on helping those in failing marriages and, from 2005, civil unions, to sort out their difficulties and move on.
One partner or both could apply for dissolution of the marriage or relationship. From 1990 a dissolution order (as divorce became officially known) did not require a hearing in front of a judge.
Irreconcilable breakdown of marriage became the only basis on which divorces were granted. No one was blamed. Living apart for two years was sufficient proof of irreconcilable differences.
Rate of divorce
When no-fault divorce became possible, there was a sudden leap from about 6,000 divorces a year in the late 1970s and the start of the 1980s to over 12,000 in 1982. The rate then dropped to around 8,500 a year. It grew through the 1990s and into the early 2000s, reaching 10,608 in 2004. The number then dropped again, with 8001 divorces granted in 2017. Overall, about one-third of formal partnerships end in divorce.
The Family Court was set up in 1981. It had responsibility for managing the breakdown of marital relationships, and, since 2005, of civil unions. Its focus was on easing the process; couples could get counselling and advice before divorcing.
The Family Court heard virtually all custody and relationship property cases from 2002, when its jurisdiction was extended to cover de facto couples, including same-sex couples. Family Court judges occasionally sent particularly complex cases to the High Court.
Criticisms of the Family Court
The lack of services designed and delivered by Māori has also been criticised. The Family Court’s focus on reconciliation where possible, irreconcilable breakdown as the basis for divorce, and provision for children when their parents divorce has been described as ‘in tune with Maori thinking’.1 But the focus on the marital couple alone, rather than the whole whānau, ignored the broader context that Māori couples were part of. There were also general criticisms of the Family Court, including that delays were lengthy, the system was too adversarial, and that women were favoured in custody matters.
Significant change, 2014
The Family Court’s systems were significantly altered in 2014. Services designed to shift low-level dispute resolution to parents were expanded or introduced. These included information resources and tools, a mediation service, a free information programme on minimising the effect of separation on children, and a legal advice service for parents in dispute. In-court processes were standardised and followed ‘simple’, ‘standard’ or ‘complex’ tracks. In some situations people were required to represent themselves rather than having a lawyer. The goal was to make the family justice system more efficient, less expensive and more focused on the needs of children.
A divorcing couple with children could enter the family justice system and come out with an agreement that covered custody of children and property without ever going to court. For those who managed this, the system worked well – it was faster and led to enduring agreements. For those who needed more support or preferred to use the Family Court, it was often slower. The use of ‘without notice’ applications became a focus of criticism. Made by one person without the knowledge of the other, without notice applications were assessed by a judge purely on the basis of the information given by the applicant, who had legal representation. The number of without notice applications rose considerably, and they became a source of tension and concern.
A review in 2017 found that the reforms had not succeeded in reducing time for many of those using it, that court staff were overwhelmed with work and that the savings made were minimal. In 2018 it was announced that there would be a further review of the Family Court system.