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Articles for the category "Family Law"

"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1977

In an overview of New Zealand Conflict of Laws, the authors note some distinguishing features regarding the law of domicile, for example, the domicile of adopted children, married women and minors.

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"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1977

In an overview of New Zealand Conflict of Laws, the law governing capacity to marry, as well as formalities (including consent to marriage of minors), is discussed briefly. The concept of marriage is also covered with express reference to the status of polygamous unions.

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"A Wrong to be Righted?"

PRH Webb, 1976

The author examines case law applying relevant English and New Zealand statutory provisions to the effect that a local court will not grant ancillary relief in respect of a foreign decree for divorce or nullity, due to the absence of prior proceedings in that (local) court. A plea is made for reform in this area of the law in regard to foreign decrees that would be recognised by a New Zealand court.

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"Adoption and Succession in Private International Law"

BD Inglis, 1957

This article deals with rights of succession at English law of children adopted overseas with reference to English case law. The author concludes that, if a child adopted overseas has acquired the status of legitimacy through the operation of the relevant foreign adoption law, that child must have the same capacities and incapacities as a legitimate child in England. Therefore, the construction of terms, such as “issue” and “child”, is governed by English domestic law, but the question whether a person has acquired the status of legitimacy is governed by the rules of private international law.

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"Adoption, the Marshall Case, and the Conflict of Laws"

BD Inglis, 1957

In a critical discussion of Re Marshall, Barclays Bank Limited v Marshall [1957] Ch 263; 2 WLR 439; 1 All ER 549, the author laments the failure of the Court to distinguish between the law governing the construction of a will (in interpreting “child” or “issue”) and the law determining the status of a foreign adopted child (whether fully legitimate) in determining such child’s rights of succession. Reference is also made to Re Brophy [1949] NZLR 1006, which fails to accord full effect to this distinction.

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"Case and Comment: In re Marshall"

BD Inglis, 1957

The author criticises the position adopted by the English court that, in order for a child adopted overseas to succeed under an English will, the child must have succession rights under the law governing the adoption. It is submitted that the foreign law, governing the adoption, should determine the child’s status (legitimate or not), while issues relating to the construction of the will is governed by English law. The author points out that the position of a child adopted overseas has been assimilated with that of a child adopted in New Zealand through statute

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"Jurisdiction in Cyberspace: The When and Where of On-line Contracts"

Justin Hogan-Doran, 2003

This article examines when and where on-line contracts are made in an attempt to define the place of contracting as one of the bases of jurisdiction in a number of Common Law systems, including New Zealand. Within this context the author considers the continued application of the postal acceptance rule to on-line contracts with reference to allocation of risk. The author argues for a conflict of laws meaning to be given to where a contract is made. In regard to jurisdictional bases, forum conveniens should be adopted as a basis of jurisdiction, instead of merely controlling the exercise of jurisdiction.

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"Recognition of Foreign Adoptions"

BD Inglis, 1958

With reference to Bairstow v Queensland Industries Pty Ltd (1955) St R Qd 335, the author discusses problems in regard to fatal accident claims on behalf of adopted children where the relevant foreign adoption statute (in the country where the child was domiciled at the time of adoption) does not confer the status of legitimacy upon an adopted child. The focus is on English Adoption Acts within the context of a fatal accident claim in Australia (Queensland).

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"Getting it Right in One"

PRH Webb, 1998

This case note deals with the issue of parental consent raised in Kawasaki v Kawasaki [1997] NZFLR 932 (DC). With reference to English case law, the author highlights the anomalies that may ensue should the forum not heed a different classification of parental consent in the relevant lex domicilii. Therefore the approach of the judge in considering the possibility that parental consent might be regarded as a matter of capacity to marry, rather than a formality in Japanese law, is welcomed.

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"Maintenance after Foreign Divorce Decree"

PRH Webb, 1970

This article highlights the possibility of keeping a maintenance order alive where the order had been granted during the subsistence of a marriage, which was later dissolved through a foreign divorce decree, recognised in the forum. The author explores the application of this doctrine of “divisible divorce” in English cases, applying the relevant English statutes, and points to possible results in the New Zealand context with regard to comparable New Zealand statutes.

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"Matrimonial Property"

PRH Webb, 1994

The author notes recent cases on matrimonial property and conflict of laws, amongst them Samarawickrema v Samarawickrema [1994] NZFLR 321; (1994)11 FRNZ 502 that dealt with foreign immovable property in terms of the Matrimonial Property Act 1976; and Gilmore v Gilmore [1993] NZFLR 561; (1993) 10 FRNZ 469, an application for stay of proceedings on the basis of forum non conveniens in trans-Tasman proceedings.

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"Judicial Attitudes to Family Property"

Michael Hardie Boys, 1995

In a general discussion of case law dealing with the Matrimonial Property Act 1976, reference is made to the problem of foreign immovable property and section 7(1) of the Act. Considering the disparate judgments in this area of the law, the author concludes that the matter may require further attention.

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"Pre-Nuptial Agreements: International Problems"

David McLay, 2001

This brief note deals with potential problems regarding the recognition of foreign pre-nuptial agreements in terms of the Property (Relationships) Amendment Act 2001. Since the Act includes de facto relationships and most marriages are preceded by such, the Act should allow for entry into a foreign pre-nuptial agreement at the time of actual marriage.

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"Some Moot Points on the 1980 Hague Convention"

Nigel Lowe, 2015

The author considers three aspects of the 1980 Hague Convention on the Civil Aspects of International Child Abduction that may be problematic and in need of reform. One challenge is where the child has been removed from a contracting state in accordance with a Convention ruling, and the ruling is reversed on appeal. The author examines the ability and obligations of contracting states to make new return orders in response to such appellate rulings. The author then examines difficulties in determining the child’s place of habitual residence, particularly regarding newborn children. Finally, the author considers the ability of contracting states to discharge return orders that have not been enforced, and the circumstances in which they should do so.

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"Reforming New Zealand’s Conflicts Process: The Case for Internationalisation"

Campbell McLachlan, 1984

This article calls for the adoption of an internationalist approach in developing the discipline of private international law in New Zealand. With reference to trans-national custody disputes and international child abduction, the author illustrates the need for internationally agreed solutions in order to secure conflicts justice for individuals caught up in trans-national family disputes. New Zealand should participate in the work of Hague Conference on Private International Law and contribute to the development of uniform private international law rules.

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“Marriage a la Mode – On the Telephone – The Rules in Berthiaume v Dastous”

PRH Webb, 2012

This article considers the application of the conflict of laws rule relating to the formal validity of a marriage to telephone marriages. The author considers whether in these circumstances the rule that a marriage must comply with the formality requirements of the lex loci celebrationis should be applied to require compliance with the formality rules of both countries in which the marriage seemingly takes place.

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“Keeping a Weather Eye Open for a Rare Bird”

PRH Webb, 2010

This article surveys a range of commonly occurring family law issues. The focus is on the application of the longstanding conflict of laws rule that the applicable foreign law will not be applied if it is contrary to public policy within these issues. The issues surveyed include: validity of a marriage, granting of separation orders, prohibition on marriage and remarriage, void marriages, recognition of overseas dissolution and nullity decrees, recognition of maintenance applications, paternity orders, parenting orders under the Care of Children Act 2004, adoption and relationship property agreements.

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“Intercountry adoptions under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption”

Jane Mountford and Claire Achmad, 2010

This article provides an overview of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Ministry of Social Development’s work in that area. The author discusses when the Convention applies to an adoption and its processes and requirements. Impediments to adoption under the Convention, such as where a child’s habitual residence is uncertain, are also discussed. A major focus is the apparent tension between cases in which a pragmatic approach is required to uphold the best interests of the child and the need to comply with Convention processes. The article concludes by briefly discussing the Conventions possible application to cases of international surrogacy.

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"Reform of the Law of Domicile"

CF Forsyth, 1977

The author highlights certain changes brought about by the New Zealand Domicile Act 1976, most notably the abolition of the wife’s domicile of dependence, new provisions in respect of the domicile of children and the abolition of the revival of the domicile of origin. Although there may be choice of law problems where spouses have different domiciles, the conclusion is that South African law could benefit from similar reforms.

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"Section 7 of the Matrimonial Property Act 1976: A Choice of Law Rule?"

CF Forsyth, 1976

The author highlights a number of issues in regard to s 7 of the Matrimonial Property Act 1976 as a “choice of law” rule, such as: the complexity of the section in respect of its limits of application, outside of which the common law rules apply, as well as the unqualified adoption and extension of the principle of mutability to all movable property. Problems surrounding express choice of law clauses in marriage settlements and alternatives to “matrimonial domicile” as a connecting factor are also addressed.

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"The Trend towards Recognition of Polygamous Marriages in Common Law Countries and Matters Incidental Thereto"

A Hiller, 1963

This article traces the history of the recognition of polygamous marriages in regard to legitimacy of children and succession to property with reference to English law. The author also explores the attitude of the English courts towards the recognition of the dissolution of polygamous marriages through non-judicial forms of divorce. Finally, the article examines the character and definition of polygamous marriages with reference to English, New Zealand, Canadian and United States case law.

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"Validity of Talak Divorce in New Zealand Dissolving Potentially Polygamous Marriage"

PRH Webb, 1979

Hassan v Hassan [1978] 1 NZLR 385 concerned an application for a declaration that a Mohammedan marriage had been validly dissolved through a talak, pronounced in New Zealand. In this case note the author examines relevant New Zealand legislation and case law pertaining to the availability of matrimonial relief in relation to potentially polygamous marriages, as well as the recognition of non-judicial divorce.

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"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1978

In an overview of New Zealand Conflict of Laws, the authors note some distinguishing features regarding the law of domicile, for example, the domicile of adopted children, married women and minors.

^ Top of page

"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1978

In an overview of New Zealand Conflict of Laws, the law governing capacity to marry, as well as formalities (including consent to marriage of minors), is discussed briefly. The concept of marriage is also covered with express reference to the status of polygamous unions.

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"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1978

The aim of this contribution is to provide an outline of New Zealand conflict of laws with specific reference to distinguishing features. The main focus is on statutory jurisdiction in the areas of family law and succession, as well as jurisdiction in regard to immovable property and insolvency.

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"Conflict of Laws: Harvey v Harvey; K v P; P v Secretary for Justice"

Tony Angelo, 2004

This brief note deals with the interpretation of habitual residence as a matter of fact within the context of international child abduction. More specifically, the author refers to the impact of shuttle custody agreements on the determination of a child’s habitual residence.

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"Conflict of Laws: T v North Shore District Court"

Tony Angelo, 2004

The author notes briefly that T v North Shore District Court (HC Auckland, Miller J, 5 March 2004, CIV 2003-404-6528 and Harrison J, 21 April 2004) confirms the position in respect of countries not covered by the Adoption (Intercountry) Act 1977: an adoption under s 17 of the Adoption Act 1955 is valid without the application of the investigatory procedures of the Adoption (Intercountry) Act 1977.

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“New Zealand Family Law and International Law – A Comment With Some Questions”

Kenneth J Keith, 2016

The author explores the importance of both private and public international law in New Zealand family law. The author begins by outlining the contexts in which private international law issues can arise, and how the conflict of laws has historically dealt with such cases. The author notes New Zealand’s membership of the Hague Conference on Private International Law and signing of Hague and non-Hague family law treaties, discussing the extent to which these treaties have been implemented in national law by Parliament and the courts. The author concludes by commenting on some family law conventions to which New Zealand is not a party, and signals future challenges for the relationship between family law and international law.

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"Dutch Marriage Contracts – A Trap for New Zealand Practitioners"

NJC Francken, 1972

This note explores the application of the conflict rule in terms of which matrimonial property issues are governed by the law of the husband at the time of marriage. The author draws attention to potential difficulties in applying the Dutch matrimonial property regime in respect of Dutch immigrants in New Zealand.

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“An Unprecedented Case”

PRH Webb, 2010

A comment on City of Westminster Social and Community Services Department v C [2008] EWCA Civ 198, [2009] Fam 11. The author discusses and presents possible solutions to the issue of what the lex loci celebrationis of a telephone marriage may be.

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“Case Note: Timing it Right”

PRH Webb, 2009

The decision of Shepherd v Shepherd (High Court, Auckland, CIV 2008- 404-002213, 23 October 2008) is noted for the issues it raises in relation to the date at which relationship property is classified as moveable or immovable and the date at which the situs of that property should be determined.

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"Future Models for International Surrogacy - Proposals for Change"

Mark Henaghan, 2014

This paper outlines the current New Zealand position on international surrogacy, discusses the Care of Children (Adoption and Surrogacy Law Reform) Amendment Bill and argues that new legislation on international surrogacy is needed to protect children's rights.

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"International Surrogacy and the Adoption (Intercountry) Act: Defining Habitual Residence"

Debra Wilson, 2016

The author explains the circumstances in which the Adoption (Intercountry) Act 1997 will apply to cases of international surrogacy, where the intended parents of a surrogate child born outside of New Zealand wish to be recognised as the child’s legal parents in New Zealand. In accordance with the Act’s incorporation of the Hague Adoption Convention 1993 into domestic law, the Act applies if the habitual residence of the child is outside New Zealand. Determining the child’s habitual residence becomes a complicated task when there is no biological link between the child and either of the intended parents. The author argues that in such a situation the habitual residence of the intended parents can be imputed to the child where the intended parents are regarded as the legal parents in the child’s birth country, and the child has the biological make-up intended by the surrogacy arrangement. Such an approach is consistent with recent case law, the purposes of the Adoption Convention, and the principles of New Zealand surrogacy law.

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"Surrogacy in New Zealand: the current landscape"

Margaret Casey, 2014

This paper identifies the key issues that arise in trans-border surrogacy arrangements.

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A Casebook on the Conflict of Laws of New Zealand

PRH Webb and JLR Davis, 1970

Cases and materials on the New Zealand conflict of laws

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Conflict of Laws

BD Inglis, 1959

This textbook covers the main areas of conflict of laws.

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Hague Convention on Civil Aspects of Child Abduction

Margaret Casey and Lex De Jong, 1995

This New Zealand Law Society booklet on child abduction provides a practical guide on the use and effect of the Hague Convention.

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International Issues for Family Lawyers

Margaret Casey and Lex De Jong, 2003

This New Zealand Law Society booklet on child abduction covers defences to applications for the return of children to their country of origin.

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"The Impact of the Adoption (Intercountry) Act 1997 on Pasifika Adoptions - a Manukau perspective"

Margaret Rogers, 2014

This paper considers the impact of the Adoption (Intercountry) Act 1997 on adoptions of Pasifika born children. It outlines the statutory criteria that must be fulfilled before an adoption order can be made and argues that the legislation should be modernised.

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"International Adoption and Surrogacy in New Zealand"

Dinah Kennedy, 2014

This paper outlines the international adoption process for New Zealand couples who wish to adopt a foreign born baby (under traditional adoption), or who wish to adopt a baby pursuant to a surrogacy arrangement.

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"The enforcement of foreign maintenance orders: what role for the common law?"

Jack Wass, 2017

The author considers the Court of Appeal’s judgment in Eilenberg v Gutierrez [2017] NZCA 270, [2017] NZFLR 471 on the enforcement of maintenance orders.