Based on my own experience, evolving the law is a good move. Married for 12 years, mother of three children, separated in 2012, the divorce decree followed two years later - yet 714 days after lodging an originating application in the High Court to sort out matrimonial matters, I remain patiently waiting for a PRA trial fixture allocation.
While the intention of the statute is pure in theory, in practice the reality is completely different. Due to the cost of representation, for several years now Ive flown solo as an untrained lay litigant navigating the labyrinth of the adversarial system.
The whole experience has been a test of fortitude, stamina and resolve. It should not be that hard, expensive or such an uneven playing field. Yet the adverse impact on the whanau is the real cost here, not the legal counsel billings incurred.
The entire process takes a long time and is not user friendly. First there is a two year stand-down period after separation before applying for a Dissolution Order. Next step is applying to the Family Court. Another step is taking the proceedings up to High Court if it is warranted.
Then the game of chess starts. Whoever has the most power has the most mobility and the opening moves establish control of the board.
This game is not for the faint hearted; particularly one based on fruits of the marriage held within a complex trust structure where settlor and shareholding powers are not equally shared.
If one party is better resourced than the other and there are no legal mechanisms in place to freeze assets or easily trace the money trail, you can be seriously outmuscled from the get-go. Expect to shadow box - a lot.
You may need to fend off an army of legal counsel while trying to keep it together to furnish helpful evidence advocating for visibility and a proper division - that is if you have access to all the discovery documentation.
If you have been locked out from financial information, removed as a beneficiary, evicted from your home, your business premises and had funds frozen, then the battle to get a forensic accountant engaged and tailored third party discovery through a High Court order may take years as you languish in a cycle of case management conferences submitting memorandum after memorandum for this move to happen.
It reminds me of the iconic rumble in the jungle fight between Muhammad Ali and George Foreman. Especially, Alis now famous rope-a-dope boxing style of getting pummelled on the ropes by his big badass opponent. He never gives in. Ever.
Alis endurance strategy was intended to sap Foremans strength. It was effective yet meant Ali sacrificed some serious pain before it succeeded.
This is the PRA reality for many of us - we're literally on the ropes at the mercy of court rules and procedure. I know this after sitting in the Supreme Court supporting gutsy Melanie Clayton at her landmark divorce trial which is now etched in the annals of law forever.
Nine years she bravely stood her ground and took the hits of litigation driven predominantly from her former spouse across a multitude of court jurisdictions. Her experience parallels my own to the letter. So I praise the Law Commission for this influential kaupapa it now chooses to serve.
I urge the lawmakers to look at the NZ rules-based system versus offshore examples of discretionary justice where its not necessarily a 50-50 split. Judges take an arithmetic approach to calculating financial support so the financially stronger spouse is held to account through iron-clad maintenance directions.
Statistics NZ report one third of all marriages in Aotearoa end in divorce so what is now needed is a holistic rethink of this social legislation so it can be redesigned to deliver a balanced outcome for the highest good of all.
