Family Provision in New Zealand and Australia

2020 ◽  
pp. 450-476
Author(s):  
Nicola Peart ◽  
Prue Vines
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Customary Law ◽  
Indigenous Populations ◽  
Sex Partners ◽  
Same Sex ◽  
Her Family ◽  
Reproductive Techniques ◽  
The Common ◽  
Over Time

New Zealand and Australia are named in that order in the title because New Zealand was the first to develop the discretionary family provision jurisdiction, in 1900, that now applies in New Zealand, Australia, and much of the common law world. This allows courts to make awards to family members from the estate of the deceased. Originally benefitting only the surviving spouse and children, family provision has extended the rules of eligibility in line with changes in the meaning of ‘family’. So as well as spouses, claims can also, in many of the Australasian jurisdictions, be made by civil partners, cohabitants, and same-sex partners. Most jurisdictions have also broadened the class of eligible children to include grandchildren and stepchildren who were being maintained by the deceased as well as children born of new reproductive techniques. Both New Zealand and Australia have significant indigenous populations and their eligibility to claim family provision is modified to accord with their customary law. Over time, the courts have adopted a much broader view of a deceased’s ‘moral duty’ to his or her family, particularly in regard to claims by adult children. The size of awards has increased correspondingly. The chapter discusses this development, as well as the increasing relevance of Indigenous customary law and how the courts deal with disentitling conduct. In view of the greatly expanded scope of family provision in New Zealand and Australia, testamentary freedom may be only an illusion in these jurisdictions.

scholarly journals Language and Anglican Canon Law – Dabbling Briefly into Another Legal World

2011 ◽  
Vol 42 (2) ◽  
pp. 387
Author(s):  
Bill R Atkin
Keyword(s):  
New Zealand ◽  
Canon Law ◽  
Common Law ◽  
Customary Law ◽  
Anglican Church ◽  
Westminster Model ◽  
Legal Nature ◽  
The Common ◽  
The Church

Canon law is a body of rules that govern churches. It has a venerable history and has at times marched in step with the common law. It has a specialised vocabulary – even the word canon – much of which is derived from Greek. It also has sophisticated legislative systems, which vary from denomination to denomination and from place to place. In the case of the Anglican Church of New Zealand, the system is in part based on the Westminster model but has been modified when thought appropriate, with the result that the language used is partly familiar to the average lawyer but partly not. The exact legal nature of canon law is uncertain and may depend in part on whether the church is the established religion or not. In New Zealand where there is no establishment, a comparison could be made, inter alia, with customary law.

Land Tenure, Property, and Development

2000 ◽  
Author(s):  
Peter Dale ◽  
John McLaughlin
Keyword(s):  
Land Tenure ◽  
Common Law ◽  
Land Rights ◽  
Customary Law ◽  
Natural Object ◽  
Statutory Law ◽  
Present Context ◽  
The Common ◽  
The Law ◽  
Over Time

The law provides a complex set of rules that have evolved within each society to ensure its orderly running and the peaceful behaviour of its members. The law may take several forms, amongst which broadly speaking, there is statutory law and customary law. Under statutory law, all rules and regulations are written down and codified; under customary law there is no written record but it is assumed that the code is well known by all members of society. In some jurisdictions there is the common law which grew out of customary law; over time the judgements of the courts have been written down and now create precedents whereby new cases can be judged. many jurisdictions have legal regimes that combine in some fashion statutory and customary law. The law of property deals both with relations between people (in personam) and of persons to things (in rem). The law recognizes different types of interest in property and makes a distinction between the physical objects and the abstract rights associated with their use. Land as real or immovable property is in many jurisdictions taken to include all things attached to it such as buildings and other permanent fixtures. It also usually includes the minerals below the soil and the air above, unless these are specifically excluded. In some countries, however, a distinction is made between ‘land’ as a natural object with soil and a surface and ‘property’, which is taken to mean the buildings and other man-made objects attached to the land. In the present context, land will be regarded as including all construction and development, while the word ‘property’ will normally be used more specifically to relate to the abstract nature of land. Rights describe what may be done with property; they are abstract but none the less real in their effect. They have been described as being like a bundle of sticks associated with any property, one stick for each thing that can be done with the property.

scholarly journals Takamore v Clarke: An Appropriate Approach to the Recognition of Maori Custom in New Zealand Law?

2013 ◽  
Vol 44 (1) ◽  
pp. 141 ◽  
Author(s):  
Laura Lincoln
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Case Note ◽  
Customary Law ◽  
Modern Approach ◽  
Majority Judgment ◽  
The Common ◽  
Appeal Decision ◽  
Court Of Appeal

This article reads as an extended case note on the majority judgment of the 2011 Court of Appeal decision, Takamore v Clarke. This case highlighted the tension between the application of the common law relating to burial and the application of Māori custom, and presented the Court of Appeal with difficult questions regarding the recognition of Māori custom by the common law. The majority treated Māori custom as analogous to English local custom, calling for the custom to meet a list of requirements in order to be recognised as part of the New Zealand common law. The Court held that Tūhoe burial custom did not meet all of the requirements for recognition and so could not be recognised. Nevertheless, with the view that custom should still be taken into account, the Court proposed a "more modern" approach to customary law. This article begins by considering the appropriateness of the analogy drawn by the Court to English local custom, with reference to the historical judicial application of Māori custom in New Zealand. It then critically analyses the application of the authorities cited by the Court. Finally, this article explores the effect of the majority's "more modern" approach on the treatment of Māori custom in New Zealand law. The article contains a postscript pertaining to the Supreme Court's more recent decision.

Reasoning with the Foundations of Rules

2018 ◽  
Vol 46 (1) ◽  
pp. 49-83
Author(s):  
Duncan Wallace
Keyword(s):  
Common Law ◽  
Legal Rule ◽  
High Court ◽  
Historical Fact ◽  
The Common ◽  
Over Time

In PGA v The Queen, the High Court found that a legal rule ceased to exist well before many people thought it did. In Mabo v Queensland [No 2], the Court found that a legal rule came into existence well before many people thought it did. These conclusions are obviously different, and so are the reasons that led to them. But in both decisions the Court relied on the foundation of a legal rule to account for the rule's validity over time. In PGA, the rule was founded on another legal rule. In Mabo, the rule was founded on an historical fact. I explain how the Court reasoned with these foundations, and what this reasoning suggests about the nature of the common law in Australia.

EQUITY IN COLONIAL WEST AFRICA: A PARADIGM OF JURIDICAL DISLOCATION

2006 ◽  
Vol 50 (2) ◽  
pp. 132-144 ◽  
Author(s):  
KWAME AKUFFO
Keyword(s):  
West Africa ◽  
Common Law ◽  
Legal Culture ◽  
Customary Law ◽  
Colonial Experience ◽  
British Colonial ◽  
The Common ◽  
English Law

In English law, equity is assigned relatively benign and comfortable roles, functioning as a canon of interpretation of the common law; as its versatile and flexible help-mate and mitigator of its formal strictness. More than this, equity claims a moral justice or conscience function that is deeply embedded in legal culture. As a consequence, equity has been extremely successful in lubricating the machinery of English law, providing it with a ready means of change to meet the needs of the dominant actors within society. This justice function is, however, contradicted by equity's history and its practical functioning, particularly, within the British colonial experience. This article examines the effect of the imposition of English equity on the prevailing customary law systems in colonial West Africa. The analysis challenges the fundamental claim of equity to a moral justice function within the colonial regime and argues that equity served the imperial objective as an instrument for fragmenting and dislocating indigenous property systems in order to facilitate the installation of capitalist property forms.

Developments in Pledges of Land in Ghanaian Customary Law

1967 ◽  
Vol 11 (1) ◽  
pp. 8-26 ◽  
Author(s):  
Gordon R. Woodman
Keyword(s):  
Present Article ◽  
Common Law ◽  
The Other ◽  
Customary Law ◽  
The Common

There are two principal methods whereby land may be used as security for a loan in Ghana. One is the customary law transaction called a mortgage by Sarbah.2 The other is the common law mortgage. It will be convenient to refer to the customary law transaction as a “pledge”, because the creditor obtains possession of the land, and the present article is not concerned with the use of chattels as security. Accordingly, “mortgage” will always mean a common law mortgage.

An African Doctrine of Equity in South African Public Law

2013 ◽  
pp. 1-15
Author(s):  
Thomas W. Bennett
Keyword(s):  
South African ◽  
Common Law ◽  
A Priori ◽  
Full Range ◽  
Public Law ◽  
Customary Law ◽  
Range Of Functions ◽  
History Of ◽  
The Common ◽  
African Form

For the first time in the history of South African law, a typically African concept – Ubuntu – has been adopted into the common law of the land (which is a mixture of English and Roman-Dutch law). Ever since colonial conquest, the indigenous normative orders of Africa have been treated as inferior. While South Africa’s new constitutional dispensation had the effect of elevating customary law to the same status as that of the common law, the traffic of ideas between the two systems continued to favour the latter as the superior system. The reception of ubuntu into the common law reversed this process. This paper examines the function of ubuntu in its new environment. Most of the discussion about the concept has concentrated on its meaning, a question that has been concentrated on finding a suitable English translation. The most obvious have been the calques, ‘humanity’, ‘personhood’ or ‘humaneness’, but none have been especially helpful, for they cannot hope to convey the full range of functions now performed by ubuntu. It is argued in this paper that searches for a priori meanings are unhelpful: words are continually being exploited by users to serve their own particular ends. In this regard, it must be appreciated that ubuntu is a loanword, and thus especially susceptible to manipulation. The paper shows that the courts have used ubuntu to supply a peculiarly African form of equity that has been used to solve hard cases and conflicts between rules, notably in the area of public law.

General Limitations on the 'Right to Fire' in New Zealand

1982 ◽  
Vol 24 (4) ◽  
pp. 517-534
Author(s):  
A.J. Geare
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Current Situation ◽  
Court Decisions ◽  
Statutory Protection ◽  
The Common ◽  
The Right

This paper examines the development in the limitations imposed on employers' right of dismissal in New Zealand from the time when only the common law restrictions applied, through the first ineffectual statutory limitations, to the current situation. The paper analyses the current statutory protection against unjustifiable dismissal with reference to recent Arbitration Court decisions, discussing its implications, achievements and shortcomings.

scholarly journals The Loss of Birthright Citizenship in New Zealand

2013 ◽  
Vol 44 (3/4) ◽  
pp. 653 ◽  
Author(s):  
Caroline Sawyer
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Recent Change ◽  
Migrant Communities ◽  
Birthright Citizenship ◽  
Permanent Resident ◽  
The Common

The Citizenship Amendment Act 2005 removed the traditional common law rule that a person born in New Zealand was, just for that reason, a New Zealand citizen. It required that the person have a parent who was a New Zealand citizen or permanent resident at that time. The change is often said to have been made to prevent transient immigrants having New Zealand citizen children in order to remain in the country, after the Supreme Court's decision in the Ding and Ye line of cases reputedly confirmed that foreign parents did thus obtain that right. This article discusses the misconceptions surrounding the loss of full birthright citizenship, the background of contemporary citizenship law in the common law world and the potential effects of the recent change on migrant communities and on New Zealand's existing population.

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