Victims of abuse can end marriage/civil union earlier
With the passing of what is colloquially known as ‘Ashley’s Law’ in October last year, family violence will be a ground to end a marriage or civil union without the victim having to endure the current two-year period of living separately from their spouse or partner. The law change was passed with the unanimous support of all parliamentary parties. Ashley’s Law comes into force in October 2025.
The Family Proceedings (Dissolution of Marriage or Civil Union for Family Violence) Amendment Act 2024 enables a spouse or civil union partner to rely solely on a protection order to prove family violence to end their marriage or civil union. Ashley’s Law[3] will enable survivors of family violence to escape and move on with their lives.
Relationships are one of the most important and significant aspects of our lives. One of the most meaningful types of relationship is marriage or a civil union. In law, the Marriage Act 1955 defines marriage as the union of two people, regardless of their sex, sexual orientation or gender identity. One of the cornerstones of New Zealand law is recognising the importance of the family unit, which family law seeks to protect and promote. This creates a gap in the law where protections for family members should exist, but do not. An example can be found in the issue of divorce.
Requirements for divorce
Divorces are governed by the Family Proceedings Act 1980 (FPA). Within the FPA, the ground for a divorce requires the marriage to have broken down irreconcilably. This can prove difficult as an ‘irreconcilable difference’ is only made out in the situation where the parties to the marriage/civil union are living apart and have been living apart for the period of two years immediately prior to the filing of the application for an order of dissolution. The FPA emphasises that evidence of any other matter that may have contributed to the breakdown in the marriage is irrelevant.
Ashley’s Law and how it helps to protect the family
One of the key issues with the regulation of divorce within New Zealand is that the governing legislation emphasises the importance of marriage. It is difficult to obtain a divorce outside of the qualifying criteria because of the statutory requirements to end a marriage. While our law protects marriage, it does not provide protection for victims of family violence that may occur within that marriage/civil union.
The purpose of Ashley’s Law is to reduce the harm caused by family violence by amending the FPA to establish a new ground for dissolving a marriage/civil union based on family violence. It also removes the requirement for parties to the marriage/civil union to live apart for two years prior to the dissolution on the ground of family violence.
Under Ashley’s Law, the basis for establishing grounds of family violence requires the applicant to be a ‘protected person’ under a final protection order made against their spouse or civil union partner. A final protection order is the sole evidence for establishing family violence under Ashley’s Law. This is because obtaining a final protection order requires the applicant to establish that there is family violence inflicted upon them by the named person.
Ashley’s Law allows survivors of family violence to divorce their spouse/civil union partner without the need to live apart for two years, or without the need of proving an irreconcilable breakdown, which allows for an easier exit and enables survivors to move on.
Conclusion
Despite marriages/civil unions being governed by legislation, until now our law has not provided adequate protection for survivors of family violence because of our outdated grounds for obtaining a divorce. By requiring parties to a marriage/civil union to be living separately for two years before filing the application to dissolve the marriage/civil union, our family law had forced survivors of family violence to endure a two year process to leave a marriage. Ashley’s Law has remedied that.
[3] Ashley’s Law is named after Ashley Jones who campaigned for the ability for a spouse to end their marriage or civil union due to family violence earlier than the legislative requirement to have a two-year separation.
