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Endnotes

^[1] We discussed this history in more detail in paras 113 of the preliminary paper nzlc pp44.

^[2] An additional security is that by virtue of s 10(1)(a) (which requires a joint application to cancel registration) the joint tenancy cannot be severed unilaterally as it can in other cases (Fleming v Hargreaves [1976] 1 NZLR (CA) 123). We do not think that this consideration on its own warrants preservation of the joint family homes legislation.

^[3] We discussed the matters described in this paragraph in more detail in Part II of the preliminary paper nzlc pp44.

^[4] New Zealand Official Year Book 2000, 120, para 6.2. A graph comprising Appendix C of nzlc pp44 records the annual rate of new marriages from 19611998.

^[5] Statistics New Zealand, National Summary: 1996 New Zealand Census of Population and Dwellings (Wellington, 1997) 52, Table 11.

^[6] Appendix A to nzlc pp44 depicts the registration figures over the life of the legislation in graph form.

^[7] The settlor or settlors must, at the time of registration, have been able to pay his, her or their debts without recourse to the settled property (s 3(1)(b)) and the bankruptcy protection is postponed for two years after registration in the case of an unadvertised application (s 9(1)(d) second proviso).

^[8] Including various classes of quasi-secured creditors such as local authorities in respect of rates (s 15).

^[9] See Official Assignee v Lawford [1984] 2 NZLR 257, 264. If the bankrupt or any family member refuses to yield up possession to enable a sale with vacant possession, the Official Assignee can apply for a possession order to the District Court under the Insolvency Act 1967 s 66, but the order is a discretionary one and we are told that, in practice, orders are not easily obtained.

^[10] There is a fuller discussion of the factors relating to the specified sum in para 34 of the preliminary paper nzlc pp44.

^[11] nzlc pp44, paras 3637.

^[12] Insolvency Act 1967 s 42(3).

^[13] Some submitters suggested substituting a specified percentage of nett value, but it is difficult to justify an arrangement that would reward the conspicuous consumption of a crashed commercial high-flyer more generously than the modest housing expenditure of a small tradesman.

^[14] nzlc pp44, para 45.

^[15] 13 Ed I c 18.

^[16] (1542) 34 & 35 Henry VIII c 4.

^[17] Bankruptcy Act 1966 ss 116(2)(d)(i), (ii).

^[18] Insurance Law Reform Act 1985 ss 4 and 5 repealing the Life Insurance Act 1908 ss 65 and 66 and the Inalienable Life Annuities Act 1910.

^[19] 3 Laws of the Republic of Texas 113 (1839).

^[20] We do not discuss the other saving, mentioned in paras 3 and 5, namely the possibility, in the case of very small estates, of a transmission by survivorship to the surviving spouse which makes a formal grant of administration unnecessary. If, before settlement, the property stood in the name of one spouse only there is a saving only if that spouse dies first, and it is not always possible to ensure that the spouses expire in the correct sequence. In any event there seems to be general agreement that this possible saving on its own does not justify the legislation.