Section 182, the Family Proceedings Act 1980: Application in Estate Litigation

Presented by Ross Knight for the Legalwise Estate Planning, Wealth Protection, Probate Problems and Disputes Webinar on 14 March 2025.

Introduction

While the focus of this paper is on section 182 of the Family Proceedings Act 1980 (“FPA”), in estate litigation, when a marriage subsists at date of death, a discussion of this sort is better informed by analysis of the wider legislative framework and policy considerations underpinning that legislation.

Over the past 30 years, the Law Commission have released numerous publications on the reform of relationship property, trust, and succession law, beginning with the Succession Project in 1996.[1] This initiative invited discussion and debate for reform of succession law, including:

The Wills Act 1837 (UK),[2]
The Law Reform (Testamentary Promises) Act 1949,
The Family Protection Act 1955,
The Matrimonial Property Act 1963, [3] and
The Administration Act 1969.

Between 1996 and 1997, there were six further publications by the Law Commission, in pursuance of a primary objective to provide for all succession laws (i.e., estates) under one statute. In its report dated 18 August 1997, the Law Commission observed that there was an anomaly in the law between the position arising on the end of a marriage by separation as opposed to death.[4]

“Right from the time of the enactment of the Matrimonial Property Act 1976 it has been considered anomalous that the statute’s provisions do not apply where either spouse has died. A principal purpose of the changes we recommend is to ensure that the position after death marches in step with the position for the living”.

Since the introduction of Part 8, the Property (Relationships) Act 1976 (“PRA”), in 2002, the Law Commission has released a further nine publications in relation to relationship property, trust, and succession law, with a similar objective to that which occupied their minds in 1996 and 1997, namely a consolidation of various laws relating to relationship property, trust, and succession law, into more simplified and easily accessible codes.

The reform of section 182, FPA, has been a topical feature of the Law Commission’s work over the years. In 2012 the Commission questioned whether s 182, FPA, should be extended to apply to de facto relationships, as the PRA had been in 2002.[5]

In 2016, the Law Commission was tasked to undertake a comprehensive review of the PRA. On 1 November 2018 it published an issues paper promoting various ideas for reform, including a new statute, to be called the Relationship Property Act, and on 28 June 2019 published its final report.[6]

In its final report, the Commission recommended the repeal of s 182, FPA, for two reasons:

“First, we are satisfied that amended section 44C will eliminate the need for partners to rely on section 182 in order to achieve a just division of property at the end of a relationship. While section 182 could, in theory, have a wider application, in practice, this is not how it is being used. Section 182 is a "relic from the past". Its resurgence in recent times is due to the PRA's failure to provide an effective remedy for accessing trust property when relationships end. In the absence of any evidence of a need to provide a remedy with wider application than amended section 44C, we are not convinced that section 182 needs to be retained”.

“Second, we consider the new Act should continue to operate as the principal source of law that governs property division when relationships end. The new Act should therefore be a comprehensive regime as far as possible. This will ensure property disputes are resolved applying the same purpose and principles. It will also promote the inexpensive, simple and speedy resolution of property matters by enabling disputes to be addressed at the same time, in one court and on a global rather than piecemeal basis”.

In a nutshell, the Commission recommended the repeal of s 182, FPA, and the amendment of the trust-busting provisions in the PRA (ss 44 and 44C), to provide more streamlined remedies when a relationship ends by separation or death.

Regrettably, reform has been slow in the making, although I would be remiss not to acknowledge that in in 2005, s 182, FPA, was amended to include civil unions, but not de facto relationships, as was the PRA.[7]

As is so often the case when legislative reform lags behind societal change and expectations, Senior Courts are left to fill the vacuum.[8]

Setting the Scene

In Thakurdas v Wadsworth [2018] NZHC 1106, the High Court held that the personal representatives of a deceased estate have standing to bring an application under s 182, the Family Proceedings Act 1980 (“s 182, the FPA”). On appeal, the Court of Appeal agreed.[9] The following excerpts are instructive:

At [11]:

“The Family Court’s jurisdiction does not arise on application made under s 182. Rather, it may inquire into matters encompassed by the section on or after dissolving a marriage or civil union (or the making of another relevant order).”

[emphasis added]

At [12]:

“Nothing about the statutory language or its evident purpose — that of doing justice in particular circumstances by modifying arrangements that were premised on an enduring relationship — suggests that only a party to the relationship may invoke the jurisdiction. Such a limitation is inconsistent with language allowing the Family Court to inquire. On its face, the language of inquiry confers a broad jurisdiction that may be invoked by anyone possessing what the Court finds to be an interest in such agreement or settlement that is sufficient to warrant such inquiry. The limit to those who may ask the Court to inquire is likely to be found in the purposes of such inquiry, that of changing arrangements made for the benefit of the parties or their children now that the premise of those arrangements has failed”.

At [15]:

“…[A] spouse’s claim under s 182 is not premised on a continuing relationship: quite the reverse. It bears no relationship to a claim for, say, loss of consortium or specific performance of a contract of service. We find that the jurisdiction is not personal in nature and did not abate on the death of Mrs Thakurdas”.

Nor does jurisdiction under the Property (Relationships) Act 1976 (“PRA”) abate on the death of a spouse, civil union or de facto partner.

The Death Provisions

Part 8 of the PRA – the death provisions - became operative on 1 February 2002. These provisions provide two options for surviving spouses or partners, which they must exercise within six months of death or the granting of letters of administration, whichever is later, unless the estate is small.[10]

The first option (Option A) is to apply for a division of relationship property. The second option (Option B) is not to apply for a division of relationship property, rather to default either to such testamentary provision made by the deceased partner in his/her last will, or the intestacy rules under the Administration Act 1969. The ability to select Option B will be dependent upon the marriage, civil union, or de facto relationship subsisting at date of death.[11]

In summary, the status of a marriage, civil union, or de facto relationship at date of death will be determinative of what, if any, relief can be sought. Simply put:

If a separation or dissolution order is in existence at date of death, Option B may be academic, given that any testamentary provision in favour of the surviving spouse or partner falls away, as will claims under s 4, the Family Protection Act 1955.[12] Note however, that the death provisions under Part 8, the PRA, will continue to apply, subject to the relevant time limitations at s 24, the PRA, as will claims under s 182, FPA.
If a marriage, civil union, or de facto relationship is in existence at date of death, the survivor may choose Option A or B, under Part 8, the PRA. In either case, he/she may in addition seek relief under s 4, the Family Protection Act 1955, and for those in a marriage or civil union, claims under s 182, FPA.
If a de facto relationship is in existence at date of death, by operation of law it is deemed to end at date of death.[13] But unlike the circumstances of/for a surviving spouse or civil union partner at 15.1. above, any testamentary benefit in favour of a de facto partner will survive death, as will his/her ability to choose Option A or B, under Part 8, the PRA. And, regardless of which Option is chosen, the survivor may also seek relief under s 4, the Family Protection Act 1955.

Application of s 182, the FPA, on death

Notwithstanding the plethora of Senior Court decisions on s 182, FPA, that have emerged over the past 15 years, and absent any substantive reform of relationship property, trust, and succession law during this time, there remains a pressing need for clarification as to the application of s 182, FPA, when a marriage or civil union ends on death, as opposed to dissolution.

Thakurdas v Wadsworth [2018] NZCA 516

Against this background, it is appropriate to return to what the Court of Appeal had to say in Thakurdas at [16]:

“We add that it is now settled law that s 182 serves an important purpose in relationship property litigation, allowing courts to address property settled under nuptial trusts. The Supreme Court has held that s 182 empowers a court to review a settlement and remedy the failure of the premise — an enduring relationship — on which it was founded, ensuring that one party does not benefit unfairly at the expense of another (Clayton v Clayton [Claymark Trust][14]). It would be inconsistent with that approach to invariably preclude any claim by the personal representatives of a deceased former spouse”.

[emphasis added]

Singh v Bourchier (2019) FAM-2018-004-000580

At a judicial conference held on 14 February 2019, by consent, the Presiding Judge was invited to make an order by way of declaration, under s 27, the FPA, as to the validity of a marriage between the applicant, Ms Singh, and her deceased husband. The purpose of that order was to satisfy the jurisdictional requirements under s 182(1), the FPA.

Section 182(1), the FPA, provides:

182 Court may make orders as to settled property, etc

(1) On, or within a reasonable time after, the making of an order under Part 4 of this Act or a final decree under Part 2 or Part 4 of the Matrimonial Proceedings Act 1963, the Family Court may inquire into the existence of any agreement between the parties to the marriage or civil union for the payment of maintenance or relating to the property of the parties or either of them, or any ante-nuptial or post-nuptial settlement made on the parties, and may make such orders with reference to the application of the whole or any part of any property settled or the variation of the terms of any such agreement or settlement, either for the benefit of the children of the marriage or civil union or of the parties to the marriage or civil union or either of them, as the court thinks fit.

[emphasis added]

Section 27, Part 4, the FPA, provides:

27 Application for declaration as to validity of marriage or civil union

(1) An application for a declaration whether, according to the law of New Zealand,—

(a) a marriage or civil union is valid; or

(b) a marriage or civil union has been validly dissolved—

may be made by any person, whether or not that person is a party to the marriage or civil union, or is domiciled or resident in New Zealand, and whether or not the marriage or civil union was solemnised in New Zealand.

(2) An application under this section may be made whether or not any other relief is claimed under this Act”.

What follows is taken from the Judge’s Minute issued on 14 February 2019 (“the Minute”), and the Reserved Judgment of Judge D.A. Burns, given and delivered on 29 November 2024 in Hooper v Meo [2024] NZFC 15340 (“the Judgment”) (referred to below).

In Singh, the parties were married in 1994; that marriage was continuing at the time of the husband’s death in 2015. In 2018, Ms Singh filed an application in the Family Court, under s 182, FPA, in relation to the Singh Family Trust. At or around the same time, she filed proceedings in the High Court against the Trust, claiming an interest in it under the Lankow v Rose doctrine.

At the judicial conference, Ms Singh sought orders by consent:

for a declaration as to the validity of her marriage under s 27, the Family
Proceedings Act 1980; and
for transfer to the High Court of her application under s 182, FPA, for it to be heard together with her proceedings in that Court, which had already been allocated a five-day hearing, set down to commence on 26 August 2019.

In the Minute, the Presiding Judge said:

At [2]:

“Before this Court is an application for a declaration as to the validity of marriage under s 27, Family Proceedings Act 1980, and application for orders as to settled property under s 182, [Family Proceedings Act 1980] and an application for an interest by way of constructive trust”.

At [4]:

“…[w]hat I am asked to do today is transfer the application that the applicant has made under s 182 and her application that the applicant here has made under s 182 and her application for an interest by way of constructive trust to be dealt with, together with those proceedings [in the High Court]”.

Then, at [5]:

“There has been discussion today about the further application, which is the application for declaration as to validity of marriage. That is sought by the applicant to ensure that she has the right to proceed with her application for a 182 application, whether it be in this Court or in the High Court. There is a marriage certificate attached to the applicant’s affidavit of 22 June which confirms that a marriage did take place on 25 November 1994 before the deceased and the applicant. Mr Ash has confirmed that he was present at that marriage ceremony. He takes no issue with the fact that that was a valid marriage. There is no other opposition to the application as sought by Mr Singh for the declaration as to validity. I therefore am able, today, to make that order that that marriage was valid pursuant to s 27 Family Proceedings Act”.

Hooper v Meo [2024] NZFC 15340

Singh was relied upon by the applicant in this case, who – in not dissimilar circumstances – sought declarations as to the validity of marriage and presumption of death to meet the threshold requirements (under Part 4, FPA) to bring an application under s 182, FPA.

The applicant, Ms Hooper, and her late husband, Mr Hooper, were married in 2010, and were still married when Mr Hooper died in 2022. In 1998, Mr Hooper formed a trust, into which he put almost all assets acquired during the marriage. Consequently, his estate was of minimal value – approximately $20,000.

The applicant was not a beneficiary under Mr Hooper’s will, but she was a beneficiary under the trust. However, the trustees had declined to make any provision for her on grounds that they did not believe she and Mr Hooper were in a relationship in the nature of marriage at the date of his death.

As a result, Ms Hooper was advised to bring an application under s 182, FPA, but to do that she first needed to obtain an order under Part 4, the FPA. In support of her application for declarations as to marriage and death, she relied upon Singh. Her applications were opposed by the trustees, who claimed, among other things:

there was no dispute concerning the validity of marriage or the fact of Mr Hooper’s death;
the exercise of discretion under s 182, FPA, is only engaged if the parties’ marriage or civil union has been dissolved; and
reliance upon s 182, FPA, was misguided; that Parliament had deliberately set the “preconditions for relief” under that provision “…[i]n order to define the legal boundary between the cases where the law of Wills and estates is used to determine property rights, and when the law relating to relationship property and maintenance is to be applied”.[15]

Respectfully, the Judgment is difficult to follow, for no other reason than that the Family Court Judge cut and pasted significant portions of the submissions of counsel in each case, before holding as follows:

At [28]:

“I decline to make a declaration as to validity of marriage and a declaration as to presumption of death”.

At [29]:

“I uphold the submissions of [the trust]. I find there is no justiciable issue for the Court to determine. There is no dispute that [Mr Hooper] is dead. There is no utility or point in making a declaration sought. A death certificate has issued”.

At [30]:

“I accept that the marriage between Mrs Hooper and [Mr Hooper] was validly entered into. There is no point in making a declaration as to the validity of the marriage. In traditional vows exchanged between bride and groom, it is often said that the marriage will continue “until death do us part”. This applies in this case”.

At [32]:

“I accept the case of [Singh] can be distinguished from the facts of this case. The point was not fully argued. The Judge recorded a consent position between the parties at a judicial conference not a hearing”.

At [36]:

“I accept that even if the Court made the orders as sought or the declarations that it would not necessarily provide the keys to open the door as contended by the applicant. I accept that s 27 of the FPA does not entitle a spouse to apply for relief under s 182(1). To obtain relief a s 27 FPA declaration must be accompanied by an application pursuant to s 29, 32 or 35 FPA. Once a spouse dies a s 35 FPA dissolution order cannot be made because the marriage is ended by death and not by a Court order. I uphold [the trust’s] submissions that if Parliament intended widows and widowers were to obtain relief under s 182 FPA this would have been explicitly provided for by Parliament. I accept that counsel cannot find any caselaw on this interpretation but the fact that it does not exist indicates that it has not been thought that it was possible. It may be that s 182 needs to be further reformed but that is not my role and it is to interpret the section as it reads. Therefore I am persuaded by the respondent’s submissions in this regard…”

Respectfully, it is difficult to reconcile Singh and Hooper. In Singh, the Judge was invited, and agreed, to make orders by consent, and agreed, having satisfied himself that he had before him, proof of marriage, in the form of a marriage certificate, and a witness who attended the marriage ceremony.

In distinguishing Singh, the learned Family Court Judge in Hooper, drew a distinction between orders made at a Judicial Conference as opposed to a hearing. I would argue, with respect, that there is no difference – nor could it be said that the learned Family Court Judge in Singh had no jurisdiction to make orders by consent at a Judicial Conference.[16]

In Hooper, the applicant produced evidence of marriage (which disputed by the respondent trust), accepted by the Judge. In my respectful opinion, the learned Family Court Judge erred by taking into account irrelevant considerations which appear to have influenced his conclusions that:

there was no point in making a declaration as to the validity of the marriage; [17]
it was not the role of the Court to make orders “to provide a key to unlock a remedy if there is no genuine dispute”; and [18]
the applicant’s “attempts to invoke s 182 [were] futile”, as contended by the respondent trust.[19]

While it was open to the respondent trustees to form a view as to the status of Ms Hooper and the deceased’s relationship at the time of his death (for the purposes of exercising their discretion as to whether she should benefit), in my respectful opinion, they went much further than that, and their arguments were left unchecked by the learned Family Court Judge. Indeed, he accepted them.

Ms Hooper was seeking declarations simpliciter both as to her marriage to the deceased and his death. I acknowledge that the latter was problematic, given that the applicant sought a declaration as to presumption of death, which was always going to be difficult on the facts of this case, given that date of death had been fixed, albeit within a range of 2-3 days.

A declaration as to a presumption of death is premised on the basis that reasonable grounds exist for presuming that the party to the marriage or civil union in respect of whom the application has been made, is dead,[20] supported by evidence that that party has been continuously absent from the applicant for a period of no less than 7 years, and nothing has happened in the interim to give the applicant cause to believe that the other party was living.[21]

Notwithstanding, the application for declarations were factual matters, easily capable of determination - as was the case in Singh - the real inquiry as to the merits of Ms Hooper’s claims under s 182, FPA, should have been left for another day.

In Thakurdas, the Court of Appeal said at [11]:

(a) The Family Court’s jurisdiction does not arise on application made under s 182. Rather, it may inquire into matters encompassed by the section on or after dissolving a marriage or civil union (or the making of another relevant order). The legislation accordingly appears to envisage that the Court may act on its own initiative in the interests of the parties, or their children; presumably the occasion may arise when the Court is dealing with other matters.

(b) The subject matter is any agreement for the payment of maintenance or relating to property, and any nuptial settlement. If an agreement, it must be between the parties. If a nuptial settlement, it must be made on the parties.

(c) The Court’s jurisdiction is flexible; it may make any order it thinks fit for the benefit of the parties or their children”.

[emphasis added]

And at [12]:

[emphasis added]

At best, there are two conflicting Family Court Judgments, as to the threshold requirements (under Part 4, FPA) to bring an application under s 182, FPA. Arguably, the jurisdictional question is moot until it is determined by a superior Court. One issue may be whether there is a distinction to be drawn between an order by way of declaration or an order under Part 4, FPA. Section 182(1), FPA, says:

“On, or within a reasonable time after, the making of an order under Part 4 of this Act…”

In Hooper, the Court appears to have accepted the argument that reference to “order” at s 182(1), FPA, would exclude the making of an order by way of declaration under ss 27(1)(a) or (b), the FPA, and for that reason the application for a declaration was “futile”.[22]

Although dealing with a different provision under Part 4, FPA,[23] it is worthy of note that in AKR v SP & Anor, His Honour Justice Wylie said at [52]:[24]

“I am alive to the submissions made by Ms Hunter, but the position may not be quite as bleak as she forecast. I note the provisions of ss 27 and 28 of the Act. It may be that a declaration made under those provisions is an order made under Part 4 which could give the Family Court jurisdiction under s 182. This issue however was not fully argued before me and I do not therefore take it any further. It will have to wait for another day”.

[emphasis added].

This case was referred to and relied upon by the respondent trustee in Hooper, to support the proposition that a dissolution order made in a foreign country could not be relied upon for the purposes of s 182(1). No reference was made in the Judgment to the excerpt referred to above.

At paragraph [35](b), the Judgment, the learned Family Court Judge records the submission made as follows:

“Not every order under part 4 FPA permits s 182 to be engaged. In AKR v SP Whylie J held that an order recognising a foreign order for divorce or dissolution pursuant to section 44 FPA does not constitute an order for the purpose of s 182 FPA”.

Conclusion

In conclusion, although s 182, FPA, has been thoroughly considered by the Senior Courts and the Law Commission at various times, absent reform there remains a vacuum in relation to the application of s 182, FPA, when a marriage or civil union subsists at date of death.

In my submission, it was open to the Presiding Judges in Singh and Hooper to make declarations of marriage, given that there was no dispute in either case. The only possible dispute was the inquiry that would ultimately unfold as to the merits of each claim under s 182, FPA. Fortunately for Ms Singh, she was given the opportunity to pursue her claims, but Ms Hooper, whose claims were equally deserving, was not.

[1] “What Should Happen to your Property when you Die?”, NZLC Miscellaneous Paper (NZLC MP1), 28 August 1996.

[2] The Wills Act 1837 (UK) was part of New Zealand law for 170 years, until it was replaced by the Wills Act 2007 on 1 November 2007.

[3] The Matrimonial Property Act 1963 applied to inter vivos matrimonial property disputes, and claims by or against the estate of a deceased spouse, until the introduction of Part 8, the Property Relationships Act 1976.

[4] “Succession Law: A Succession (Adjustment) Act”, NZLC Report (NZLC R39), 18 August 1992.

[5] “Law of Trusts: Preferred Approach Paper” NZLC Issues Paper (NZLC IP31), 13 November 2012.

[6] “Review of the Property (Relationships) Act 1976”, NZLC Report (NZLC R143), 28 June 2019.

[7] Section 44(1), the Civil Union Act 2004 (in relation to s 182, FPA); and s 3, the Property (Relationships) Amendment Act 2005, in relation to the PRA.

[8]Ward v Ward [2009] NZSC 125; Clayton v Clayton [Claymark Trust] [2016] NZSC 30, [2016] 1 NZLR 590; Thakurdas v Wadsworth [2018] NZHC 1106, [2018] NZCA 516; Dyer v Gardiner [2020] NZCA 385; Preston v Preston [2021] NZSC 154; Sutton v Bell [2023] NZSC 65; and Zhou v Lassnig [2024] NZCA 177.

[9] Thakurdas v Wadsworth [2018] NZCA 516.

[10] Sections 61 and 62, PRA. Note, s 2, the PRA, defines a “small estate” as being an estate that can be lawfully distributed without the need for probate/letters of administration.

[11] See s 19 of the Wills Act 2007, s 26 of the Family Proceedings Act 1980, and ss 77, 77A, 77B, 77C of the Administration Act 1969. See also ss 3 of the Family Protection Act 1955.

[12] Section 26 of the Family Proceedings Act 1980, s 19 of the Wills Act 2007, and s 3 of the Family Protection Act 1955.

[13] Section 14, the Legislation Act 2019.

[14] Clayton v Clayton [Claymark Trust] [2016] NZSC 30, [2016] 1 NZLR 590 at [60].

[15] At [21](d), the Judgment.

[16] Section 175D(2)(j) of the Family Court Rules 2002.

[17] At [30], the Judgment.

[18] See also, paragraph 28 above.

[19] At [35], the Judgment.

[20] Section 34, the FPA.

[21] Section 35, the FPA.

[22] At [21] and [35], the Judgment.

[23] A declaration under Part 4, the FPA, that an order for dissolution of marriage made outside of New Zealand was nonetheless an order for dissolution, for the purposes of bringing an application under s 182, FPA.

[24] AKR v SP & Anor (2011) CIV-2011-404-002998.