Edmonds Judd

relationship

Parental Leave: What to Know When You’re Expecting

House, Kids, Relationships
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Meet Luke and Sally. They’ve been together for about a year, and now they have some exciting news—Sally is pregnant with their first baby! Amid the joy, Sally wants to find out what her pregnancy means for her job and what leave she can take once the baby arrives.

Pregnancy Rights at Work

First things first: the law protects pregnant employees. Under the Human Rights Act, it’s illegal for anyone to treat Sally unfairly because of her pregnancy. In fact, employers can (and often do) offer extra support, like flexible work hours, to make things easier for expecting mothers.

Understanding Parental Leave

Sally is planning to be her child’s main caregiver, so she looks into her parental leave options under the Parental Leave and Employment Protection Act (let’s call it the Parental Leave Act for short).

The Parental Leave Act defines a primary carer as the biological mother (or another person, like a partner, in certain situations). If you’re the primary carer, you may be entitled to:

  • Unpaid parental leave from your employer, and
  • Paid parental leave payments, which are handled through Inland Revenue.

How Long Has Sally Been at Her Job?

What Sally qualifies for depends on how long she’s worked for her employer and how many hours she’s worked each week. Let’s break it down:

  1. 6-Month Test:
    If Sally has worked for her employer for at least an average of 10 hours a week in the 6 months before her baby’s due date, she qualifies for:

    • Up to 26 weeks of unpaid leave, and
    • Up to 26 weeks of parental leave payments.
  2. 12-Month Test:
    If Sally has worked for at least 10 hours a week in the 12 months before her baby’s due date, she’s eligible for:

    • Up to 26 weeks of paid parental leave, and
    • Extended unpaid leave of up to 52 weeks total.

Good news for Sally—she meets the 12-month test, so she’s entitled to the full benefits.

What About Luke?

Sally and Luke also have the option to share parental leave. If they decide Luke will be the primary carer at any point, he can take over Sally’s entitlements, but this means Sally would no longer have primary carer benefits during that time.

If Luke doesn’t take over as the primary carer, he can still apply for partner’s leave:

  • 1 week if he’s worked 10+ hours weekly for the last 6 months, or
  • 2 weeks if he’s worked 10+ hours weekly for the last 12 months.

What Does Sally Need to Do?

To take parental leave, Sally must give her employer at least 3 months’ notice before her due date. She’ll also need to include a certificate from her midwife confirming her pregnancy and due date.

Need Help?

Parental leave laws can seem complicated, but knowing your rights can make the process smoother. If you’re unsure about your entitlements or how parental leave might affect your job, we’re here to help—just reach out!

 

Kristin O’Toole

 

Relationship Property Claims by a Partner – Part 1

Property, Relationships, Trusts
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A Contracting Out Agreement (COA) is an estate planning necessity for blended families.

 

The relationship property landscape is changing, and some popular protection tools are becoming less effective. Trust busting cases like Clayton v Clayton show the court’s willingness to treat trust property as relationship property in the event of separation, especially where assets are transferred into a trust during a relationship.

 

A COA is the most effective tool to ensure a couple’s assets and liabilities are divided as they intended on separation or death.

 

If there is no COA, then couples in a marriage, de facto relationship or civil union are exposed to claims against potentially all of their assets and liabilities (even if in trust) on a 50/50 basis.

 

On death, the surviving partner can elect to either:

 

  • Apply for division of relationship property in accordance with the Property (Relationships) Act (the Act), the presumption being a 50/50 split; or

 

  • Accept the gift under their partner’s Will and retain any individually and jointly owned property.

 

A COA can prevent a surviving partner (or their children, as discussed in our next article) from making a claim for division of relationship property under the Act on death.

  Libby McDonnell.

COULD YOUR FOREIGN PRE-NUP BE A PRE-NOPE?

Overseas, Relationships
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Customs officials seize goods at Aotearoa New Zealand’s ports of entry every day, from fruit and veg and animal parts to firearms and illegal drugs. But one thing we don’t expect to be stopped at the border is the validity of pre-nuptial agreements from overseas.

 

Hundreds of thousands of migrants come to our shores every year in search of pastures new. Many of these migrants, particularly those who come from a country with a similar legal system, will have relationship property agreements that were drawn up and signed in their home countries. It may come as some surprise to these folks that their legal documents won’t necessarily be upheld by our courts.

 

This is where you might be tapping your forehead as you triumphantly exclaim “Aha! But section 7A of the Property (Relationships) Act 1976 says that agreements from overseas are valid here!”

 

Well yes, sometimes they are. The Act provides that, if spouses have agreed in writing that the property law of a country other than New Zealand is to apply, and if their agreement is valid according to the laws of that country, then the Act will not apply. However, the courts have been slow to give blanket authorisation to every such agreement. One example is a classic South African ante-nuptial agreement designed to opt-out of the accrual system in South Africa. Previously the courts have said that this kind of agreement is designed to opt-out of South African property law alone, and that it is not designed to apply the world over.

 

There are quite a few different factors the courts will consider when deciding whether to uphold a foreign relationship property agreement. One of these is a requirement that the agreement expressly invokes the application of foreign law. This can be a problem because so few relationship property agreements anywhere in the world are drafted to apply outside of the country in which they are signed.

 

This is where your alarm bells might be going off. How is a couple in say, South Africa, who might have no idea that they will migrate to New Zealand in a few years’ time, supposed to know and contemplate how our relationship property laws might apply? It’s a headache they don’t know they will have!

 

If you have a contracting out agreement, pre-nuptial agreement, pre-marital agreement or antenuptial agreement from overseas and you think there is even the slightest chance that you may need to rely on it, then seek independent legal advice. Edmonds Judd can help advise you on whether the courts are likely to uphold it or if a new agreement should be entered into (assuming you and your spouse both agree). In New Zealand, contracting out agreements can be entered into before or during the de facto relationship or marriage, but bear in mind that legal entitlements may be quite different under New Zealand law.

 

Jamie Graham

Love, heartbreak and … death?

Estate, Relationships, Retirement
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Make a new will and EPAs when you separate

Many people who have endured a relationship break up know it can be exhausting – mentally, emotionally, physically and, ultimately, financially. You could be forgiven, then, for thinking the priority is to get the agreements signed or Court Orders made. However, what is often overlooked as one of the first steps, and yet so imperative to protect your assets and your new spouse, partner or children in the future, is updating your will and enduring powers of attorney (EPA) to reflect your new relationship status.

 

Why update your will?

There are some very good reasons why you should update your will if you separate, including:

  • Your ex-spouse/partner may still benefit under your will as it continues to be effective after you separate unless:
  • You remarry or form a civil union
  • You make a new will, or
  • The court orders otherwise.
  • If your marriage or civil union hasn’t been formally dissolved, everything remains the same (which is why you need to change your will after separation). If your marriage or civil union has been dissolved, however, your ex-spouse/partner can neither be an executor nor a beneficiary.

 

Those people whom you would like to benefit (such as your new spouse or partner, children or grandchildren) may have to share your estate with your ex-spouse/partner unless they can persuade them to waive their entitlement under your will by entering a deed of family arrangement. If your ex-spouse/partner refuses to waive their entitlement then your family would need to resort to a claim in the Family Court for additional provision from your estate, such as:

  • A claim by your new spouse/partner, children or grandchildren under the Family Protection Act 1955, or
  • A claim by your new spouse/partner under the Property (Relationships) Act 1976.

 

None of the above options will be easy, and all of them could be lengthy, litigious and expensive. If you wish to ensure those people you would like to benefit when you die do in fact benefit, your first task should be to instruct your lawyer to make a new will that reflects your newly separated situation.

 

Appointing a testamentary guardian?

If you separate, you can ensure someone you trust will look after your children’s best interests and welfare after you die by appointing a ‘testamentary guardian’ in your will. Your testamentary guardian will have the power to make guardianship decisions about your children.

 

This is particularly important if any other legal guardians (such as your children’s other parent or existing court-appointed guardians) are not so suitable.

 

Appointing a testamentary guardian gives that guardian the right to apply for day-to-day care, it does not necessarily mean they will have the day-to-day care of your children after you die. However, if the testamentary guardian was the primary caregiver prior to your death, and it is not in the children’s best interests and welfare to be placed in the care of any other legal guardians, then the court may well grant the testamentary guardian day-to-day care.

 

A testamentary guardian should be someone you consider a good role model for your children. That person should be in the best position, financially and emotionally, to help care for them, be in good health and be able to ensure continuity of care for your children so they are not uplifted from their education, social group or community. Make sure you talk with your proposed guardian to ensure they can tick all these boxes before making this appointment in your will.

 

Why update your EPA?

If you appointed your ex-spouse/partner as your attorney in respect of EPAs for personal care and welfare and/or property, this is also not automatically revoked when you separate. It’s a similar situation as overlooking making a new will when you separate – retaining an out-of-date EPA could create a very awkward family reunion if your ex spouse/partner remains responsible for making decisions about your personal matters (which doesn’t include decisions about your children) if you lose mental capacity.

 

If you do not revoke your EPA after you separate, and subsequently lose mental capacity, unless the appointment of your ex spouse/partner ceases (because your ex dies, becomes mentally incapable, bankrupt, or files a notice in court under the Protection of Personal and Property Rights Act 1988), the only option to remove an attorney is for your family to apply to the Family Court.

 

The better option? Revoke your EPAs and make new ones with your lawyer at the same time you update your will.

 

Do it sooner rather than later

Understandably, the idea of more legalities after a separation can be daunting and easily pushed to the back of your mind. Ignoring these issues may be easy to justify after the rigours of a separation. Ultimately, however, by not being thorough post-separation, which includes re-arranging your estate planning, you are leaving a potentially complex and expensive legal headache behind for your loved ones and much uncertainty for your children.

 

Get onto this sooner rather than later – the risk isn’t worth it.

 

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
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