Divorce was almost unknown in mid-19th century New Zealand. Although it was more common late in the century, it was still a scandalous, shameful rarity, which was seen as challenging the sanctity of marriage. Separation and desertion (walking out on marriage and family) were alternatives to divorce. Desertion was widely believed at the time to happen more often in New Zealand than elsewhere.
Matarena Reneti of Ngāti Awa was unhappy with the man she'd been matched with and married to by elders in the early 1930s. '[T]he match marriage man, I don't like him at all. And after the baby has come I get sick of putting up with him. I said to my sister, "I'm not having HIM anymore. Anyone can have him! You can have him! But I'M not having him." So I kicked him out, got rid of him, dissolved the marriage.'1
Divorce (and marriage) among Māori generally followed Māori tradition well into the 20th century. Adultery and desertion were accepted as reasons for divorce. When a marriage had been solemnised Pākehā-style, divorce had to be obtained in the same way. Up to the 1940s petitions (the document requesting a divorce, in which the grounds for it are laid out) were translated into Māori.
Until 1867 anyone wishing to divorce had to apply to the English courts. In 1867 New Zealand’s first divorce law, the Divorce and Matrimonial Causes Act, was passed. The Supreme Court in Wellington became responsible for hearing cases.
The act allowed either husband or wife to seek a divorce, but the grounds on which they could do so were very different. To gain a divorce, a man only needed to prove adultery on the part of his wife. But for a wife to get a divorce, her husband had to commit adultery plus sodomy, incest, bestiality, bigamy, rape or extreme cruelty.
Whether 'the woman suffered from being associated with an unjust and cruel husband, [or] the man was the victim of a depraved and dissolute wife'2 made no difference. Once married, a mid-19th-century husband and wife had made their bed and were expected to lie in it. Such rotten marriages could be found throughout society, among the poor, the middle-class and the well-to-do.
In 1868 there was one petition (application) for divorce. In 1900 there were 111. Although the rate of increase was dramatic, the actual numbers remained low.
Rates of desertion were not recorded, but scattered settlements, gold rushes and poor communications made it easy for husbands to vanish. Sympathy was widespread for wives left to manage alone, making a living as best they could while bringing up children.
Couples who wished to separate could simply do so, but in some instances contracts were drawn up spelling out allowances and conditions.
When the Baileys, a Southland couple, separated in the early 1880s, the contract they signed allowed each to live independently of the other. Mrs Bailey got a weekly income, and kept money she already had. In return, she promised not to come within 20 miles (32 kilometres) of Invercargill Post Office, to pay her own debts, and not to pledge her husband’s credit. But when Mr Bailey claimed £842 banked in his wife’s name, the agreement went before a judge and was declared invalid.
Divorce provoked both strong support and firm opposition. Opponents of divorce said that the family was the basic moral, social and economic unit of society, and the ‘divorce made easy craze’ would bring social disintegration. Others argued that marriages were failing anyway, and that regulation was needed.
Most of the churches were staunchly opposed to divorce. The Catholic and Anglican churches argued that marriage could only be ended by the death of a spouse. The smaller churches – Baptists, Congregationalists and Salvation Army – agreed. The Presbyterian Church was more liberal: following the Scottish legal tradition, it allowed divorce on the basis of adultery by either husband or wife. But it was firmly against any further easing of divorce.
Generally, divorce was for the well-to-do, desertion for the working class. Separation, which occurred without official involvement, is impossible to track. It may have been the solution of choice for many unhappy couples.
Leaving a marriage was easier for a man than a woman. Men were paid more, so could support themselves. Women’s work paid less, and in the 19th century married women had seven or more children on average.
There were also legal and social factors making it harder for a woman to leave. If a woman left the marital home without her husband’s permission she had legally deserted the marriage, her husband’s obligation to support her was void, she had no right to custody and could be denied contact with her children.
Finding fault and punishing wrong-doing within marriage were central concepts in divorce. Over the 20th century these attitudes slowly weakened, but public and parliamentary debate was fierce when the terms of marriage were challenged or blame was left aside.
From 1898 the grounds for divorce were widened. In the late 19th century the women’s movement campaigned for divorce to be equally available to men and women. Parliament responded with the Divorce Act in 1898. Adultery alone became enough for either men or women to be divorced. New grounds included:
The number of divorces climbed through the 20th century, from 111 in 1900 to more than 7,000 in 1980. Growth in the rate was generally steady, with jumps occurring when new grounds became available, wars ended, or government benefits became available to divorced women.
Most marriages that broke down were handled by a magistrate’s court, using laws relating to desertion rather than divorce. From 1910 women could apply for separation and guardianship orders as well as maintenance and protection. From 1939 men were also able to apply for these orders.
Until 1940 a separation and maintenance hearing at a magistrate’s court was a miserable and public experience. Applicants waited in sordid and uncomfortable witness rooms, then told an open court details of marriage breakdown and sometimes poverty. Their lives were dealt with alongside charges of drunkenness, petty theft and casting offensive matter. From 1940 matrimonial cases were heard separately and in closed court.
By the 1950s divorce had become routine for some people. One married woman in her early 30s deceived and betrayed her husband a number of times, then took their child and went to Sydney to live with a wealthy lover. When her husband pleaded with her to return, she replied, ‘All this is very boring to me and I’m already late for the hairdresser’s.’ 1 After their divorces were finalised, she and her lover married, both of them for the fourth time.
In order to get a divorce one of the partners had to be in the wrong. Most grounds for divorce clearly identified a guilty party – the 1907 act, for example, allowed the divorce of a partner who had murdered or attempted to murder the child of the other spouse. New reasons of this kind were easily accepted.
Allowing divorce because of long-term mental illness provoked serious discussion amongst parliamentarians. A person with mental illness was not choosing to behave badly, and marriage was for better or worse, in sickness and in health. Those in favour won the day when two of three prominent doctors consulted said that mental illness was hereditary and those with it should not be allowed to marry.
There was public outrage in 1920 when it became possible for the guilty party to apply for, and be granted, divorce. Divorce was intended to punish the guilty, not act as a reward for bad behaviour. A law change in 1921 meant courts had to refuse a divorce if the person applying was found to be at fault.
Divorce was studied from the 1950s onwards, and some factors were found to increase its likelihood. Couples married at a young age, particularly if the woman was already pregnant, were more likely to divorce. The less well-educated were more likely to divorce than the highly educated.
In the 1950s people living in the North Island were more likely to get divorced than those in the South Island. This bewildered experts. Perhaps, they suggested, the rapid population growth in the north was unsettling, encouraging divorce among some who then influenced others to do the same.
As the number of divorced people in the community increased, the number remarrying rose. Divorced women were more likely to remarry than divorced men. This difference may have been a result of the need for economic security when raising children.
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.
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.
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.
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.
From the 19th century laws governing divorce, matrimonial property, desertion, and state support for families were based on a division of responsibility and behaviour. Husbands owned family property and money, and were responsible for supporting wives and children. Wives kept house, had and reared children, and looked after a family’s day-to-day needs.
Judges’ belief in these family roles was spelt out in their judgements and reflected in divorce settlements.
In the 19th and early 20th centuries, when desertion was far more common than divorce as a way of ending a failing or unwanted marriage, wives relied for support on family or close friends, or on paid employment.
Some women were poverty-stricken and forced to seek charitable aid from hospital boards or church organisations. Often given reluctantly, this came with requirements of home inspections and reports on the woman's ability to run a home.
A wife or charitable-aid board could take a man to court for not supporting his family, but that meant finding him. Not only was vanishing relatively easy, but many wives did not want their husbands home. One charitable aid worker reported that many deserted women told him, ‘Do not send for my husband; we starve in peace when he is away, but we starve in misery when he is home’.1
Wives could go to the magistrate’s court and get a maintenance order. Many did so – in the mid-1890s, 60% of the Wellington magistrate’s court business involved deserted wives seeking maintenance and protection orders.
When divorcing, a woman had to prove her husband at fault to get maintenance. If the amount later proved too little, judges were unlikely to increase it. Instead, they often suggested the woman give children of the marriage to their father. Failure to pay maintenance was common.
After the Family Proceedings Act was passed in 1980, each party became responsible for providing for the other’s reasonable needs if that person could not do this for him or herself. In practice, it remained women who sought maintenance. Grounds on which it could be claimed included childcare responsibilities and the effect of the division of functions within a relationship. Maintenance was awarded for a limited period – people were expected to move toward maintaining themselves.
In the 21st century spousal maintenance was less common. The process of applying for it was expensive, the results uncertain. Maintenance orders were sometimes ignored, requiring further legal action.
Deserted wives with children gained conditional access to a widow’s benefit with the passing of the Pensions Amendment Act 1936. From 1954 a minority of deserted women could get a widow’s benefit after divorce. Other deserted, separated or divorced women could apply for an emergency benefit, with eligibility assessed on a case-by-case basis. If a woman was the 'guilty' party in a marriage's breakdown, support would be refused. From 1973 deserted, separated or divorced women became entitled to the domestic purposes benefit.
Over time there has been a shift from maintenance towards division of property. The property available for division during divorce has also changed. At first it was the family home; then family home and chattels; from 1976, family home, chattels, and business or farm acquired during marriage; and from 2002, future earnings were considered.
In the 19th century and first half of the 20th century, the division of property was straightforward. Husbands owned property acquired during marriage, and it remained theirs after divorce. After the Second World War, women’s monetary contribution to property began to increase. Joint family homes legislation and state home financing meant that many homes were in the name of both husband and wife. More husbands found their right to property challenged by wives when divorcing.
Financial contributions didn't always count when judges decided who owned the family home. Mrs Masters, of Rata Street in Wellington, had paid all the interest on the first mortgage and the interest and principal on the second, plus the rates and insurance. She earned money by keeping boarders, working as a cleaner, selling her knitting, and taking in washing. Although she could prove her contribution to the family home and finances, when she and Mr Masters divorced in 1954, he was given title to the family home. She had the right to live there, but only while she remained single.
From 1963 judges were able to consider non-financial contributions to marriage when dividing property. They were strongly inclined to favour husbands, who continued to retain or be given sole ownership of the family home and its contents.
The purpose of the Matrimonial Property Act 1976 was to recognise the equal contribution made by husband and wife to marriage. It also extended the property available for division. Businesses, investments, money or farms, if acquired during the marriage, were added to the family home and its furnishings.
At first husbands continued to receive a greater share in the family home and contents, and almost all of other assets. Over time, more equal distribution became normal.
Since 2002 division of property when a marriage, de facto relationship (same-sex or heterosexual) or civil union breaks down has been organised according to the renamed Property (Relationships) Act 1976 as amended in 2002.
The act divides property into two categories: relationship and separate. Relationship property – the family home and furnishings, and usually other property bought during a relationship – is available for division. Separate property is not. Relationship property is divided equally. If one partner’s ability to earn a living has been reduced as a result of the relationship (because of childcare responsibilities, for example), they may get a larger share of assets or a lump sum.
The act applies to all marriages and civil unions, but the equal-division rules are softened for those that end within the first three years. It does not usually apply to de facto relationships until they have lasted three years or more. There are exceptions to this. If children are involved the act may be used. If one partner has made a substantial contribution and serious injustice would result from not applying the act, then a court order based on it can be can made.
In the mid-19th century a father owned his children. His legal rights were extensive: he could appoint a guardian and decide where a child lived and with whom. A mother’s agreement was not necessary. But in many cases of marriage failure, care and control of the children was not an issue: when deserting the family, fathers went alone.
Legislation was mainly concerned with the welfare of the child from 1887. The Infants Guardianship and Contracts Act 1887 listed three factors judges were to consider when awarding custody:
The act also removed the presumption of the father’s right to custody. In 1908 this was reinforced when the Infants Act 1908 gave mothers guardianship rights.
Welfare meant not only physical wellbeing, but the spiritual and moral atmosphere in which a child was living. Concern for the child’s moral and spiritual welfare, combined with the legal need for one of the parents to be blamed for divorce, meant that the guilty party was almost never awarded custody.
From the early 20th century the idea that young children, particularly girls, were better off with their mother also influenced custody decisions. This ‘mother principle’ could be overturned if the mother was the guilty party in a divorce. If the mother had committed adultery, she was sometimes denied access to her children.
From 1981 the Family Court heard virtually all custody and access cases.
When divorcing, couples with children under the age of 16 had to satisfy the court that arrangements for the children’s day-to-day care and financial maintenance had been made. Most divorcing or separating couples arranged custody and access without needing to go to court. When satisfactory arrangements had not been made, the court could make parenting orders spelling out day-to-day responsibilities and parents’ contact with the child.
At first custody applications made by those who had been in de facto relationships were less than half the number made by those who were divorcing. As de facto relationships became commonplace, the number of custody disputes between unmarried couples rose. By 1990 the rates were almost the same.
Custody of children can cause ferocious dispute. From the 1970s on, some fathers argued that the Family Court favoured mothers. The issue led to the formation of fathers’ rights groups, which have campaigned for more equal sharing of custody and access.
The Care of Children Act 2004, which came into force in 2005, aimed to:
The wellbeing of children was the paramount consideration. This included supporting their relationships with family members and protecting them. Parental responsibilities rather than rights were emphasised.
The terms ‘custody’ and ‘access’ were replaced by ‘day-to-day care’ and ‘contact’.
Phillips, Roderick. Divorce in New Zealand: a social history. Auckland: Oxford University Press, 1981.
Tennant, Margaret. Paupers & providers: charitable aid in New Zealand. Wellington: Allen & Unwin/Historical Branch, Dept of Internal Affairs, 1989.