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Property rights upgrade needed, says law professor

15 September 2017

To commemorate the first female lawyer, Otago University law school professor Nicola Peart has told an address the law on property rights on death requires new legislation.

Professor Peart was speaking at the 21st Law Foundation Ethel Benjamin Commemorative Address, in Dunedin. The address was presented by the Otago Women Lawyers Society (OWLS).

Nicola Peart speaking
Professor Nicola Peart giving the
Ethel Benjamin Commemorative Address.

Ms Benjamin was admitted on 4 May 1897 as a barrister and solicitor of the Supreme Court, the first woman to be admitted to legal practice in New Zealand.

“Much changed in the intervening 120 years, particularly in regard to women’s property rights. My focus in this address is on property rights on death, both of women and of men,” Professor Peart told the address.

“I have chosen this topic, because our current law has been developed in piecemeal fashion over about 120 years and is underpinned by conflicting policies. That makes the law uncertain and unpredictable.”

Disinherited and destitute

She said in the late 19th century “moral responsibility was not always observed. Wives and children were disinherited and left destitute.

“That was the reality that Ethel encountered when she started legal practice in Dunedin in 1897. She often acted for deserted wives and she was honorary solicitor for the Society for the Protection of Women and Children.”

Professor Peart noted that in May 2016 the Law Commission began a review of the Property (Relationships) Act 1976. Its terms of reference include the death provisions in the Act.

“This review and the public consultation process that is a necessary part of it provides an opportunity to resolve some this tension. It cannot address issues relating to the Family Protection Act, but resolving the conflicting policies in the Property (Relationships) Act would be a good start.

“My view is that

  • We should accept that death is different from separation.
  • Property rights on death are best regulated through succession law, covering both the relationship property entitlements of spouses and partners, and the deceased’s support obligations to family members based on need.

“As a first step, I hope that the Law Commission recommends that the Property (Relationships) Act be left to deal with the property rights on separation, while relationship property rights on death are dealt with in a separate statute to which at a later stage support obligations could be added. In my view that would provide a more coherent approach to property rights on death, and remove at least some of the current conflict in policies governing relationship property and succession law.”

Last updated on the 15th September 2017