How to write a statutory declaration nz
Lawyers must follow a strict code of ethics in their professional conduct. They must abide by this code or face a variety of punishments by disciplinary bodies.
Discuss the problem with your lawyer
The first step if you're feeling dissatisfied about your lawyer is to tell them about the problem. Often many problems stem from a lack of communication, and simply discussing the problem may resolve it. Discuss any concerns that you have as early as possible.
Who can I complain to if discussing the problem doesn't help?
If after raising the issue with your lawyer you are still dissatisfied with the way your case is being handled, the next step is to contact the District Law Society Compliants Service and let them know your grievance. If they think that your lawyer has acted unprofessionally, negligently or unethically, they can lay a charge against the lawyer with the District Disciplinary Tribunal or the NZ Law Practitioners Disciplinary Tribunal.
What can these Disciplinary Tribunals do about my complaint?
If a Disciplinary Tribunal upholds your complaint, it may take a variety of disciplinary measures, including censuring or fining the lawyer, ordering him or her to perform work for you or pay you compensation, and restricting his or her practice. The NZ Tribunal can also strike lawyers off the roll of barristers and solicitors.
What if I'm not satisfied with the District Law Society's response?
If you are not happy with the District Law Society's response to your complaint you can write to the "Lay Observer" for your region.
The Lay Observer is a non-lawyer appointed by the government to deal with complaints such as this. The Lay Observer will investigate the matter and may recommend to the District Law Society that it take certain action.
Complaints about lawyers' bills
More commonly you might want to complain about your lawyer's bill. Again you should first ask your lawyer for an explanation.
If you are not satisfied with the lawyer's explanation, the next step is to contact your District Law Society, who will refer your complaint to a committee to review the bill. You must bring your complaint within six months of receiving the bill, although you and your lawyer can agree to a longer time.
This committee has the power to reduce the amount of the bill if it upholds your complaint. Usually you will not be charged for having the bill reviewed.
What I'm not satisfied with the committee's decision about the bill?
If you are unhappy with the committee's decision about your lawyer's bill, you can appeal to the Registrar of the High Court. If you are still not satisfied with the Registrar's decision, you can appeal to the High Court itself. The Registrar and the High Court may award costs to either party on an appeal.
HowTo discuss costs with a Lawyer
Do not be embarrassed by this subject - it is far better to discuss this at the start than after a dispute over costs has arisen.
Always discuss the costs (including disbursements) and billing options.
Lawyers tend to specialise in a number of legal categories. Additionally the partners, associate & solicitor lawyers within a practice may have different charge out rates.
Billing options are either upon task completion, interim billing or through an advance payment.
- A fixed price for the completion of a task (such as buying a house) is probably the best option, but it is not always available.
- Work completed to a set cost level is the best option where it is not reasonable to estimate a final cost. Once the set cost limit is reached, the obligation is with the lawyer to contact you and seek your instructions.
- A quoted hourly rate is the more difficult for you, the client. The lawyer will have their own hourly rates, as will their staff. These rates may vary.
Cautionary notes
- Before complaining about a lawyer's bill, try to take into account factors such as photocopying and long-distance phone calls made in connection with your case. These are called disbursement.
- As lawyers charge by the hour you should use your consultation time with your lawyer well. Only contact your lawyer if you have an issue that genuinely requires his or her time. Before meeting your lawyer, work out exactly what you want to say and the questions you want to ask, so that the time and your costs are minimised.
defend yourself against a drink driving charge
How to defend yourself against a drink-driving charge within NZ
Introduction
A number of defences may be open to you if you've been charged with a drink-driving offence. You should consult a lawyer to maximise your chances of taking advantage of any possible defence.
What breath or blood tests can the New Zealand Police make me undergo?
A drink-driving charge will usually start with a preliminary passive breath test, or "sniffer" test. This is where the Police officer holds a device near your mouth to detect whether there is any alcohol in your breath.
If you fail the passive breath test or refuse to undergo it, the Police will then require you to undergo a breath-screening test. For this test, you'll have to blow into a bag or a handheld device that indicates how much you've had to drink.
A Police officer can stop you at any time while you're driving and ask you to take a passive breath test or a breath-screening test. The officer doesn't have to suspect that you're over the limit to get you to take one of these tests.
The result of a breath-screening test can't be used as evidence in Court. But if you fail the test you can be required to go with the Police officer to another place for an evidential breath test or an evidential blood test, or both. The results of these evidential tests can be used to support a charge against you.
Is it a criminal offence to refuse to undertake a test?
It's not an offence to refuse to take a "sniffer" or breath-screening test. But if you do refuse the officer can require you to go with him or her to have an evidential breath test. If you refuse to go with the officer for this test, you commit an offence and you can be arrested.
If you take the breath-screening test, it's an offence to leave before the results are obtained. You can be arrested if you do this.
It's an offence to refuse to accompany the officer to undergo an evidential blood test, or to accompany the officer but then leave before having the test, or to have the test but leave before the Police have the results of the test.
What if I wasn't allowed to talk to a lawyer?
You have the right under the NEW ZEALAND BILL OF RIGHTS ACT 1990 to get legal advice before you give any evidence, which includes undergoing an evidential breath or blood test. The Police must inform you that you have the right to contact a lawyer by telephone, and they must allow you to do this without delay. The Police should provide you with a list of lawyers who are available (under the Police Detention Legal Assistance scheme) to give free legal advice over the phone, day or night.
What if the Police don't follow the proper procedures in carrying out the tests?
Small mistakes by the Police in following the proper procedure will not always mean that the evidence against you will be ruled out. It's no defence to a charge against you that the Police didn't follow the testing procedures exactly, so long as there was reasonable compliance with these procedures. The court will weigh up how important the breach is compared with the value of the evidence.
What if the result of the breath-testing was incorrect?
It's no defence to a charge of excess breath-alcohol or blood-alcohol that there was or may have been a mistake in the breath-screening or evidential breath test, or that this mistake or likely mistake meant that the Police weren't entitled to require an evidential breath test.
Further, it's no defence to a charge of failing or refusing to supply a blood specimen that there was or may have been a mistake in the breath-screening or evidential breath test, or that this mistake or likely mistake meant that the Police weren't entitled to require an evidential breath test or a blood test.
What if giving a blood sample would endanger my health in some way?
It's a defence to a charge of refusing to supply a blood specimen if the court is satisfied that taking a blood specimen would have been harmful to your health.
Other defences
Other possible defences – such as necessity – are invoked only infrequently, and circumstances must be exceptional for them to succeed.
Cautionary notes
- When faced with a drink-driving charge, it's important to know your rights and to know the procedure that the Police are required to follow. Mistakes made by the Police may provide you with a defence. You should therefore get advice from a lawyer who is familiar with this area of law.
defend yourself against a speeding fine
How to defend yourself against a speeding fine within NZ
Introduction
New Zealand speeding fines are often given on the spot - that is, you are pulled over and issued with an instant fine (or "infringement fee"). These can simply be paid by the required dates, and there is no need to go to court.
However, you can defend yourself against an instant fine, as you can any fine notice that you receive in the post.
How do I let the Court know I want to defend the fine?
You can do this by signing the back of the infringement notice (the speeding ticket) in the space provided and returning it to the Police. The court with send you a summons, giving you a date for a court hearing at which you can defend yourself, and other details.
When is it worth defending a fine?
You should only go to court if you have a reasonable defence - if you lose you will incur further costs, and so it will be more expensive than had you simply paid the fine in the first place.
Evidence from a speed camera is enough for a Court to convict you.
Writing a letter to the Police to ask that the fine be waived
Another option before going to court to defend a fine is to write a letter to the Police or the enforcement officer on the ticket, explaining any exceptional circumstances. For example, it may be that there was a medical emergency and you were driving to the hospital. You should mention if you've completed a defensive driving course or if you've never had a ticket before.
In the letter you should request that the fine be waived. The Police may drop the charges.
Sometimes it may be helpful for a lawyer to apply to the Police for the charges to be dropped if the circumstances warrant it.
What information should I emphasise in defending the fine?
As well as any exceptional circumstances, in defending a charge you should bring attention to the surrounding circumstances – for example, the time of day, the type of road you were on, and the amount of traffic on the road. Together this information may result in the Police dropping the charges against you.
Cautionary notes
- The Court will require any "exceptional circumstances" that you claim to be just that - exceptional. You will not succeed by defending yourself simply on the basis that you are an experienced or mature driver.
division of property when a marriage or de facto relationship ends
How to - the division of property when a NZ marriage, civil union or de facto relationship ends
Introduction
The property of married, civil union and de facto couples (including same-sex couples) who have lived together for at least three years is divided (if there is a dispute) according to 'equal-sharing rules' under the Property (Relationships) Act.
The Property (Relationships) Act consists of a single set of laws that, with some exceptions, applies in the same way to married, civil union and de facto couples and also to when one of the spouses or partners dies.
If there is no dispute and a couple wishes to separate, then you may enter into a Separation Agreement.
If you've entered into a valid Property Agreement, the relationship property will be divided according to the terms of that agreement and not by the PROPERTY (RELATIONSHIPS) ACT (this is referred to as "contracting out" of the Act). However, the agreement must be made according to strict requirements (including each party receiving independent legal advice), otherwise the agreement is invalid: see How to enter into your own property agreement.
The other option is a Pre-nuptial Agreement which essentially is again "contracting out" of the Act.
What is a "de facto relationship" under the Property (Relationships) Act?
A de facto relationship means a relationship between a woman and a man, or a woman and a woman, or a man and a man, who:
- live together as a couple, but are not married to each other, and
- are both 18 or older
In deciding whether two people live together as a couple, the court considers all the relevant circumstances, including any of the following if they are relevant:
- the length of the relationship
- the nature and extent of common residence
- whether or not the couple have a sexual relationship
- the degree of dependence or interdependence between the two people, and any arrangements for financial support between them
- the ownership, use and acquisition of property
- the degree of mutual commitment to a shared life
- the care and support of children
- the performance of household duties
- the reputation and public aspects of the relationship
No single factor is essential for the two people to be considered as living together as a couple.
A de facto relationship ends if the two people cease to live together as a couple.
How long must we have lived together to be covered by the equal-sharing rules?
The equal-sharing rules apply to your marriage, civil union or de facto relationship only if you have lived together for at least three years.
A marriage, civil union or de facto relationship of less than three years is called a "relationship of short duration", and in general is not covered by the equal-sharing rules. See below, Marriages, civil unions and de facto relationships of `short duration' (less than three years)".
What if a married or civil union couple were in a de facto relationship immediately before?
In that case the length of the de facto relationship is counted in determining whether or not the marriage or civil union is of "short duration".
For example, if a couple have been married for two years but also lived together as a de facto couple for two years immediately before that, the couple is treated as having been married for four years.
"Relationship property" - The presumption of equal shares
The PROPERTY (RELATIONSHIPS) ACT classifies property under two headings: "relationship property" and "separate property".
Relationship property is divided equally, unless there are extraordinary circumstances that make equal sharing "repugnant to justice", in which case the relationship property is divided according to the contributions that each party made to the relationship.
In the assessing of the different contributions, financial contributions do not rate any more highly than contributions of other kinds, such as caring for children or performing domestic tasks.
There is just one rule for all relationship property - it is all divided equally unless there are extraordinary circumstances that make equal sharing repugnant to justice.
Separate property remains separate
In general, separate property (that is, all property not classed as relationship property) remains the property of the person who owns it and is not divided. It includes -
- property that the parties owned before the marriage, civil union or relationship began and that they kept separate during it
- any gifts and inheritances that the parties received during the marriage, civil union or relationship and that they kept separate
Separate property also includes all property acquired out of separate property, and the proceeds of selling any separate property.
But if an increase in the value of one party's separate property, or any income or gains derived from the property, is caused wholly or partly by the "application" of relationship property, then the increase, or the income or gains, is relationship property, not separate property.
Similarly, if an increase in the value of one party's separate property, or any income or gains derived from the property, is caused wholly or party by the actions of the other party, the increase, or the income or gains, is treated as relationship property, and is divided according to each party's contributions to the increase. This applies whether the other party's actions caused the increase directly or indirectly.
Marriages, civil unions and relationships of "short duration" (less than three years)
The equal-sharing rules apply to your marriage, civil union or de facto relationship only if you lived together for at least three years. A marriage, civil union or de facto relationship of less than three years is called a "relationship of short duration".
In the case of marriages or civil unions of short duration, special rules apply to decide how the property is divided, which mean that instead of there simply being equal shares, the property is divided according to the contributions the parties made to the marriage or civil union. In the case of de facto relationships of short duration, the Act doesn't apply at all (unless there are special circumstances, such as there being a child), which means that your legal rights will be determined by the ordinary rules of property ownership.
The court can decide to treat a marriage, civil union or de facto relationship of three years or more as if it were a relationship of short duration, if the court thinks this is just in all the circumstances.
Marriages and civil unions of short duration - In the case of a marriage or civil union of less than three years, equal sharing does not apply to -
- the family home or a particular family chattel if it was owned wholly or substantially by one spouse or partner at the start of the marriage or civil union, or
- the family home or a particular family chattel if it came to one spouse or partner, after the marriage or civil union began, by succession, by survivorship, as the beneficiary under a trust, or by gift from a third person, or
- the family home and all the family chattels if the contribution of one spouse or partner to the marriage or civil union was clearly disproportionately greater than that of the other
In these cases, the share of each spouse or partner in the property in question is determined according to their contributions to the marriage or civil union.
In the case of relationship property other than the family home and chattels, each spouse or partner is entitled to share equally in the property unless his or her contribution to the marriage or civil union has been clearly greater than that of the other, in which case the shares are determined according to their contributions to the marriage or civil union.
De facto relationships of short duration - In the case of a de facto relationship of less than three years, the courts have no jurisdiction to divide property under the Act. This means that, in general, you are entitled only to property that you have legal title to: for example, if a house is owned jointly, you are entitled to a half-share.
However, there is an exception to this, which applies when the court is satisfied
- either that
- there is a child of the relationship, or
- the partner applying for division under the Act made a substantial contribution to the de facto relationship, and
When this exception applies, the share of each de facto partner in the relationship property is determined according to each partner's contribution to the relationship.
What orders can the court make in dividing the property?
The court can make various orders in relation to the property or to a specific item of property to give effect to the division, such as ordering property to be sold or, in the case of the home, ordering that one party has the right to occupy the property. The court considers the interests of any dependent children.
In determining the amount and value of the property the court takes into account any outstanding debts.
Lump-sum payments to off-set future differences in income and living standards
The court may award a lump-sum payment to one party, or order a transfer of relationship or separate property, if the income and living standards of one party are likely to be significantly higher after the relationship ends than those of the other party, because of the effects of the division of functions within the marriage, civil union or de facto relationship.
This power is aimed at redressing the economic disadvantages faced by a partner who has not pursued a career while the other partner has – for example, if one partner supports the other through tertiary study or looks after the children.
Agreements to divide relationship property
If you've entered into a valid property agreement, the relationship property will be divided according to the terms of that agreement and not by the PROPERTY (RELATIONSHIPS) ACT (this is referred to as "contracting out" of the Act). However, the agreement must be made according to strict requirements (including each party receiving independent legal advice), otherwise the agreement is invalid: see How to enter into your own property agreement.
If you can't agree between you on how to divide the property, you can apply to the Family Court or High Court to deal with the question under the provisions of the Act.
Dividing property under the Act when one of the couple dies
The new laws that came into effect in 2002 extended the equal-sharing rules so that they now apply not only when a marriage, civil union or de facto relationship breaks up, but also when one of the couple dies.
In that case, the surviving spouse or partner has the choice of either
- having the relationship property divided under the rules in the PROPERTY (RELATIONSHIPS) ACT 1976, or
- receiving whatever that spouse or partner is entitled to under the deceased's will or, if there is no will, under the statutory "rules of intestacy"
See How to contest a will and How to deal with a relative dying without a will.
Time limits for applying for property to be divided under the Property (Relationships) Act
If you have split up from your spouse or partner, you must apply to the Family Court within
- 12 months after your marriage or civil union is dissolved, or
- three years after your de facto relationship has ended
The Court can decide to extend the time limit, even if the time limit has already passed.
If your spouse or partner has died, and you choose to apply under the Act for relationship property to be divided, the relevant time limits depend on the size of your spouse's or partner's estate:
- If it is a small estate that doesn't require a grant of administration from the High Court, you must complete a formal notice recording your choice within six months after the death of your spouse or partner, and apply to the Family Court within 12 months after their death.
- If it is a larger estate requiring a grant of administration from the High Court, you must complete a formal notice recording your choice within six months after the date of the grant of administration, and then apply to the Family Court within 12 months after the date of the grant of administration.
Again, the Court can decide to extend these time limits, even if the relevant time limit has already passed.
Other law changes made in 2002
The changes that were made to the PROPERTY (RELATIONSHIPS) ACT in 2002 were accompanied by other changes giving de facto partners many of the same rights as people who are legally married:
- Family protection claims - De facto partners can now apply to the court under the FAMILY PROTECTION ACT 1955 if they think that their deceased partner has not properly provided for them. See How to contest a will.
- The "rules of intestacy" (when a person dies without a will) - The laws determining how a person's property is distributed if they die without leaving a will (called the "rules of intestacy") were amended so that a de facto partner has the same status as a legal spouse. For those rules, see How to deal with a relative dying without a will.
- Spousal maintenance - The provisions in the FAMILY PROCEEDINGS ACT 1980 allowing for the court to award spousal maintenance to a spouse or ex-spouse now apply also to de facto couples. See How to apply for spousal or de facto maintenance.
Cautionary notes
- Before a couple makes any agreement for the division of their property should they break up, each party must receive independent legal advice, otherwise the agreement is not valid.
- Difficulties can occur when classifying property as either relationship or separate property, especially when -
- it was inherited by one spouse or partner and has since been intermingled with relationship property, or
- it was acquired in contemplation of a marriage, civil union or de facto relationship, or after a couple separated, or
- it concerns insurance policies or superannuation funds
enter into a property agreement - 'contracting out' of the Property Relationships Act
How to enter into a NZ property relationship agreement
Introduction
The property rights of both married and de facto New Zealand couples (including same-sex couples) who have lived together for three years have been governed by the same equal-sharing rules in the PROPERTY (RELATIONSHIPS) ACT. In April 2005 civil unions were established as a legally recognised form of relationship, and civil union couples who break up are now treated the same as married couples under the Property (Relationships) Act.
These couples have the option of either making their own property agreement (referred to as "contracting out" of the Act), in which case their property will be divided in ways that they specify in the agreement, or to not make any agreement of their own, in which case they will automatically be covered by the equal-sharing rules in the Act.
A couple who decides to contract out of the Act will need to follow some special procedural rules (including each person getting independent legal advice) in order for the agreement to be valid.
Married, de facto and civil union couples who have lived together for less than three years are usually not covered by the equal-sharing rules. They too may wish to make their own property agreements to avoid uncertainty. See below,"Marriages, civil unions and de facto relationships of less than three years (`short duration')".
If you wish to prepare your own Property Agreement this Cohabitation (living together) agreement can be used. It's intended to minimise the legal expenses of people who wish to contract out of the Act.
Legal spouses or partners may "contract out" of the equal-sharing rules
The PROPERTY (RELATIONSHIPS) ACT says that a married, de facto or civil union couple, or any two people who are contemplating entering into a marriage, civil union or de facto relationship, may contract out of the Act by entering into their own agreement to determine the status and ownership of their property and how it should be divided. If they do this, the Act will not apply to them. Thus, an agreement might be made either before the marriage, civil union or de facto relationship begins, or during it, or as a way of reaching a settlement if their relationship has broken down.
The agreement can be expressed to apply while both parties are alive, or when one of them dies, or in both situations.
Property agreements entered into before a marriage have often been called "pre-nuptial" agreements. They have typically been entered into where one person brings to the marriage substantially more property than the other, and that person wishes to protect this property from a claim by the other party should they separate.
An "opt-out" system
This system works on an "opt out" basis. If a couple do nothing - that is, if they make no agreement - they will be covered by the equal-sharing rules. If they wish to avoid some or all of those rules they must actively "opt out" by making their own agreement.
What should we include in the agreement?
Your agreement should include the following terms and information:
- what property is intended to be owned together, and in what shares (equal or some other proportion)
- what property is to remain the separate property of each party
- whether or not any property should no longer be classed as separate property because it has been or will be used jointly
- who owns any gifts made by one party to the other, or any gifts from third parties
What are the special procedural requirements?
The special requirements that must be met for a "contracting out" agreement to be valid are as follows:
- The agreement must be in writing.
- It must be signed by both parties.
- Each of you must have received independent legal advice.
- Each party's signature must be witnessed by a solicitor, who must certify that the effect and implications of the agreement were explained to the signing party.
What if the special requirements are not met?
If these special requirements are not met, the agreement is invalid. Your situation will therefore be covered by the provisions of the Act (see How property is divided when a marriage, civil union or de facto relationship ends).
However, the court can validate an agreement that doesn't comply with the special requirements, if the failure to comply has not materially prejudiced either party's interests.
Court's power to cancel an agreement if "serious injustice"
The court may rule that your agreement is invalid if the court believes that it would cause "serious injustice", even if the agreement complies with the special requirements.
"Serious injustice" is a higher threshold than that which applied to contracting-out agreements by married couples under the old law before 1 August 2001 (de facto couples weren't covered by the equal-sharing rules under the old laws, and so the issue of "contracting out" did not arise for them). Previously, the court could invalidate the agreement only if it would be "unjust" to give effect to it. This change means that the courts are now less likely to overturn agreements.
In deciding whether the agreement would cause serious injustice, the court considers:
- the provisions of the agreement
- how much time has passed since the agreement was entered into
- whether the agreement was unfair or unreasonable when it was entered into
- whether the agreement has become unfair or unreasonable in the light of changed circumstances since it was entered into
- any other relevant matters
De facto couples contracting out of the Act before February 2002
De facto couples who made "contracting out" agreements before 1 February 2002, in anticipation of the Act coming into force on that date, had to follow the special procedural requirements if they made their agreement on or after 1 August 2001. Otherwise the agreement they made is invalid.
A contracting out agreement made by a de facto couple before 1 August 2001 is valid whether or not it followed the special requirements, assuming the agreement is valid under the ordinary rules of contract law. This means, for example, that the agreement does not have to be in writing for it to be valid.
How were married couples affected by the new laws introduced in February 2002?
The position of married couples wishing to contract out of the equal-sharing rules remained substantially the same after February 2002. Whether they made an agreement before or after 1 August 2001, the special requirements for contracting out apply to them.
But after 1 August 2001 a contracting-out agreement made by a married couple is subject to the higher "serious injustice" threshold, even if the agreement was made before 1 August 2001 under the old MATRIMONIAL PROPERTY ACT.
Marriages, civil unions and relationships of less than three years ("short duration")
The equal-sharing rules in the PROPERTY (RELATIONSHIPS) ACT 1976 usually apply to your marriage, civil union or de facto relationship only if you lived together for at least three years. A marriage, civil union or de facto relationship of less than three years is called a "relationship of short duration".
- In the case of marriages or civil unions of short duration, special rules apply to decide how the property is divided. Instead of there simply being equal shares, the property is divided according to the contributions the parties made to the relationship.
- In the case of de facto relationships of short duration, the Act doesn't apply at all (unless there are special circumstances, such as there being a child).
If you are in either of these situations you may wish to enter into your own property agreement to determine how your property is to be divided and to avoid the uncertainty of a property dispute. An agreement can make a property settlement happen quickly and efficiently, avoiding both considerable emotional stress and the legal costs involved with court proceedings.
Your agreement will not have to meet the special procedural rules that apply to "contracting out" agreements.
Sunset clauses
Property agreements sometimes contain a "sunset clause". This is a clause that provides that the agreement will automatically become null and void after a specified length of time.
Cautionary notes
- It is vital that you obtain independent legal advice before signing any agreement contracting out of the equal-sharing rules, otherwise the agreement will not be binding.
- It is also important that you obtain legal advice to ensure that the agreement cannot later be challenged in court under ordinary principles of contract law.
- A couple might enter into a property agreement before acquiring any substantial asset or property together. This is a sensible measure as it provides clear guidelines as to what will happen should the marriage, civil union or de facto relationship end.
