Our society is changing all the time and so is the way we’re divorcing. Here are some of the key trends in New Zealand divorces.
1. Rise of the "silver splitter"
The age at which Kiwis are getting divorced has been trending upwards. This partly reflects the increasing trend in later marriages. According to Stats New Zealand, the median age at divorce was 46.8years of men and 44.4 years for women in 2018.[1] Twenty years earlier, the median age was 40.5 years and 37.9 years, respectively. Separating at an older age presents unique challenges. Most significantly, as retirement approaches, there is limited opportunity to recover from any financial setback. The population is living longer, and this means that investments intended to provide for retirement must provide for a longer duration. The most common demographic to engage a family lawyer are those in the 40-49 age range. This group have always been referred to as the ‘danger zone’ for separation, with couples who have been together between 10-19 years are most likely to be the ones separating.
2. Mediation and negotiation are preferred
Family lawyers and their clients are preferring to use more mediation and negotiation. In a survey of family lawyers, over half said they had used mediation in 2019 and 36% said they would like to use it more.[2] This is in stark contrast with only 4%of practitioners answering they would like to use more litigation. Dispute resolution outside court can help parties resolve their relationship property matters more quickly and costs less than taking the case to Court. There can be lengthy delays while waiting for a court date to be assigned and there is no guarantee of the outcome. By pursuing settlement by agreement, the parties can avoid these delays and settle on their terms.
3. Disputes involving Trusts and companies can take longer to resolve
Family trusts are increasingly common among New Zealanders. Trusts can complicate relationship property disputes as they can be used to shield assets from a partner. Matters can become even more complicated where children are named as beneficiaries of the trust as more than two parties become involved. Matters involving large companies, particularly where the companies are worth a lot of money and there are third parties involved, can also take a lot of time to resolve. Often one party cannot afford to buy the other party out straight away and the settlement needs to be paid over several years. For most people, this is not an ideal outcome as they would prefer to have a clean break from their spouse, rather than a drawn-out settlement process.
4. Increased animosity
Despite negotiation and mediation rising in popularity, not all divorces are amicable. Some separations involve high conflict relationships. High conflict divorces have become more common with the introduction of section 15 into the Property (Relationships) Act 1976. Usually, relationship property is split 50/50 in a separation, but under section 15 the Court may rule that one party gets a greater than 50% share. The Court must be satisfied that the living standards of one party are likely to be significantly higher because of the effects of the divisions of functions during the relationship. A common example of this is where one party takes on greater responsibility for care of the children, while the other pursues a successful career. Their incomes after separation may be vastly different, enabling one of the parties to start over in a much stronger financial position. To remedy any imbalance, the court may decide that the disadvantaged party will receive, for example, a 60% share of the relationship property. Reaching agreement usually requires a great deal of negotiation as people don’t recognise the other’s sacrifices as being equal to their own.
5. The impact of social media
Social media has made it easier for everyone to see into each other’s lives. It is no different for former spouses. It is common for people to show the best parts of their life online. Where there is economic disparity between the parties, this can be difficult for the partner with a lower income. While one party is posting about their overseas holidays, the other may be struggling to get by. This can create a huge amount of tension within relationship property disputes. Emotions are further heightened where a party enters a new relationship and shares their newfound happiness online. There is an increasing trend of using social media posts to support a party’s affidavit. A person’s claim that they don’t have any assets to contribute to the relationship property pool may be discredited by posts about large purchases or overseas holidays shared on Facebook.
Conclusion
Societal changes are influencing the way we marry and divorce, and no doubt will continue to do so. What hasn’t changed is the reason people separate - a 2019 survey reveals the most common reason for separating is still simply falling out of love with your partner.
[1] Stats NZ “Marriages, civil unions, and divorces” (2 May 2019) Stats NZ<https://www.stats.govt.nz/topics/marriages-civil-unions-and-divorces>
[2] Grant Thornton New Zealand and the New Zealand Law Society New Zealand Relationship Property Survey 2019 (Grant Thornton New Zealand and the New Zealand Law Society, 12 November 2019, at 21).
