New Zealand Family Law in the 21st Century

Reviewed by Bill Atkin*

DR Don Inglis QC has written a magnum opus. Although he describes it as "a modest exercise", the text is very nearly 1200 pages. In some places, there is a great level of detail, in other places rather less so. In any event, it is a magisterial work.

My first recollection of the author was when he was Professor Inglis at Victoria University. Although he was on sabbatical for much of the year when I did family law, he arrived back in time to teach matrimonial property, skilfully using the controversial Court of Appeal decision in E v E - [1971] NZLR 859 - as the basis for virtually the whole topic. He left the law faculty to concentrate on his practice at the bar and then on the Family Court bench. Many of his judgments were erudite and he loved finding a case that was fit for the "connoisseur".

Much of this erudition finds its way into the book under review. He draws on a wealth of knowledge of legal history, case law and legislation. In some instances he analyses an issue in great depth, probably wishing that he had a real case to make his points.

However, much more than this, he asks curly questions about the current state of family law. He is certainly not short of firm opinions, which he expresses with vigour and often trenchant analysis. It is fair to say that he is unhappy, perhaps deeply unhappy, with much of the law as we have it today. Agree with him or not, the book is a major contribution to healthy debate about the direction of the law.

In some ways, Dr Inglis would prefer the law of the 21st century to return to that of the 20th century. Yet, while expressly uneasy with much that has been done this century, he is also critical of reforms made last century. For instance, in several places he more than hints that there should be a return to fault: he is against stereotyping and yet "preservation of the 'no-fault' ideology in family law itself involves the stereotyping of various forms of behaviour within a relationship" (p37). He notes the Domestic Violence Act 1995 as "a clear and plainly needed departure from 'no-fault' ideology" (p11) and finds it "curious" that this has not been extended to other areas of family law (Relationship property? Divorce? Of course, it does appear in the abuse provisions of the Care of Children Act).

One of Dr Inglis' driving concepts is that "one size does not fit all". Using it, he is scathing of legislative provision for de facto relationships, which he sees as "an exercise in social engineering" (p32) and would prefer to rely on the rules of common law and equity. Unlike marriage and civil unions, de facto relationships are often "romance without commitment" (p42). With respect, the problem is that, while flexibility is desperately needed to deal with the individual circumstances of children, a reasonable degree of certainty is needed in property and financial matters, which frankly was not offered by the makeshift constructive trust remedies. We are approaching half a million people living in de facto relationships. Can it not be argued that our legislation, far from socially engineering society, is simply catching up?

The Child Support Act 1991 is "fundamentally flawed" (p1047) and Dr Inglis would much prefer a return to the previous system. Interestingly he sees the relationship property laws as having "a rigidity tending to be based on an ideology which can give too little credit to the realities of people's lives" (p933). Further, it is "self-evident" (p963) that maintenance is a viable alternative to economic disparity.

On the other hand, he is fairly happy with the adoption laws. While he accepts that the 1955 Act needs updating and possibly extending to same-sex couples (especially if they are in a civil union - he is really a fence-sitter on this subject), he is critical of the "thicket of sociological idealism and unconscious internalised prejudice" in the adoption debate (p866).

This brief review has inevitably been highly selective and does an incredible disservice to the wealth of insight in the book. However, perhaps a sufficient glimpse has been given to show that this is no dull black-letter account. It certainly stimulates.

New Zealand Family Law in the 21st Century by BD Inglis, Thomson/Brookers, Wellington, 2007. ISBN 9780864726162. Paperback 1247 + xvi pp (including tables and index). $170 plus GST. Available in bookshops.

*Bill Atkin is Professor of Law at Victoria University of Wellington, where family law is among the disciplines he teaches. Bill is editor of the International Society of Family Law's International Survey of Family Law and is the author of numerous books and articles, including Living Together Without Marriage and Relationship Property in New Zealand. Professor Atkin wrote this review before Dr Inglis died.