Women who have to pay hundreds of thousands of dollars to abusive ex-husbands if they stay in their family home after a divorce say the law is retraumatising domestic violence victims.
A lawyer says New Zealand’s ‘no-fault’ 50-50 divorce settlements do not reflect the damage inflicted by family violence.
One woman, Lisa (not her real name), said her ex-husband was laughing all the way to the bank.
She had been married for more than 40 years when he divorced her in 2016.
“I was raped and beaten and with the financial and the spiritual and emotional abuse, I’m pretty much a mess now,” she said.
“He would punch me when I was the sober driver driving him home. I’d be sitting, unable to get out of the way of his blows and he would just punch me in the side of the head, and I’ve got permanent hearing loss caused by blunt force trauma.”
Lisa took out a protection order against him in the 1980s but asked for it to be cancelled after he promised never to be violent again.
She got another a decade later. In one attack after she took him back, she had to have three teeth extracted after he used her as a ‘human punch bag’.
She described the legal process as an abomination.
“He refused to contribute, but now he’s using the court as his weapon of choice to force me to pay property division of 50-50,” she said.
“They have set the ceiling so high and because domestic violence is so common in New Zealand, my circumstances, even though I’m badly injured – that doesn’t constitute ‘extraordinary circumstances repugnant to justice’.
“We own property that I paid for and he always said to me, ‘B**** you pay for all the bills, this money’s my money – I’m keeping my money, you have to pay for everything because you’re a b****’, he wouldn’t contribute.
“And so I’m going to have to pay twice over, I mean to say I already paid during the relationship, but the way the court analyses everything I wasn’t allowed to submit evidence of all of that violence and all that financial violence, because I should have sorted it out during the marriage.
“But how can you sort it out during the marriage when you’re begging for your life at machete point?”
Lisa said her ex-husband was getting rewarded for refusing to contribute and using violence to cow her into submission.
She calculated he paid an average of $33 a week towards the household bills over the course of their marriage.
“I became too terrified to ask him to contribute or participate, I just really became his slave. I just obeyed with everything.”
He would receive more than $400,000 if she loses an appeal against the ruling.
She would also be liable for his legal aid fees – she represented herself because she could not afford a lawyer while paying her mortgage.
“I can’t raise a loan to pay for the house a second time, because I’m not earning enough now so that this is another level of domestic violence for me.
“I’m going to have to pay him out and the house will have to be sold to get the money to pay him out.”
Another woman, Helen, said during violent outbursts her ex-partner had damaged the home she had bought for them.
She made submissions during a Law Commission review of the legislation, but the Commission’s recommendations – tabled in Parliament last year – did not go far enough, she said.
“You’re still suffering from emotional and psychological stress, just totally in a really dark space and then you find out that it’s going to cost you tens of thousands of dollars to protect what’s rightfully yours,” she said. “You’re just stuck in this legal nightmare.
“To have to pay my abuser, it’d be like a family having to pay someone who’s murdered a family member – the rest of family go ‘here you go, here’s $60,000’.”
Law Commission recommendations
The Law Commission’s report recommended the government should consider the relevance of family violence to the division of property in the context of its wider response to family violence.
When deciding whether there were extraordinary circumstances that make equal sharing ‘repugnant to justice’, a court could take into account a partner’s gross misconduct – when that misconduct had significantly affected the extent or value of relationship property.
Divorce lawyer Jeremy Sutton said that was still viewing the impact of family violence through a financial lens.
“The law is there’s a no-fault principle that underpins the Property Relationships Act so there is no difference to a settlement whether there’s been domestic violence or not,” he said.
“There’s been calls for them to focus on fault and misconduct so that a party who has committed serious or gross domestic violence may get less than for example 50 percent of the property pool.
“There’s a growing awareness that family violence has ongoing economic consequences for the victim of any violence, and by not penalising violence in division, the law effectively transmits the message that the behaviour’s got no impact on the contributions to the marriage of each spouse.
“The Property Relationships Act is social legislation and people say it should reflect the increasing awareness of the damage of family violence and be consistent with other government initiatives to curtail violent behaviour.”
Sutton said if there was a law change, it would have to be proved in court that family violence occurred and the impact of it.
It would also potentially breach the double jeopardy rules in the Bill of Rights, where an aggressor had already been punished through the criminal courts.
There were also concerns the Family Court might struggle with delays caused by dealing with family violence in divorce cases.
This article was first published in NZ Herald.