National

Consensual sex between same-sex persons aged 16 and over is lawful in New Zealand [L1.1].

Crimes Act 1961 [L1.1]

Part 7: Crimes against religion, morality, and public welfare

Section 134 Sexual conduct with young person under 16

(1) Every one who has sexual connection with a young person [a person under the age of 16 years] is liable to imprisonment for a term not exceeding 10 years.

National

In January 2002, the Family Planning Association set up a fertility clinic for lesbians and gay men who want to have children [R1.2].

In September 2000, it was reported that infertile lesbians and single women nationwide would be entitled to state-paid fertility treatment under new rules about to be introduced [R1.1].

The Health Funding Authority was to implement national guidelines on fertility services, having received a NZ$3.7 million boost to remove inequalities and reach more people.

Up until this time single women and lesbian couples have frequently been denied access to IVF procedures.

Courts & Tribunals

In January 2003, two High Court judges called for new legislation to cover the rights of fathers and children in cases involving artificial insemination after a sperm donor was refused access to the child despite a written contract [R2.1].

Asylum/Refugees

A relatively new addition to the list of provisions enshrined in the 1951 UN Convention that entitles a person to apply for refugee status, "sexual orientation" owes its inclusion to a growing understanding in a handful of countries that lesbians and gays constitute a distinct social group. This article has been invoked to grant asylum to lesbians and gay men in New Zealand [R1.1].

Immigration

A. Australian Citizens

The Immigration Act permits Australian citizens to enter New Zealand.

B. Family Reunification

Non-New Zealand and non-Australian citizens may be able to apply for "permanent residence" under the family reunification provisions [R2.6].

"Permanent Residency" - Married, de facto and same sex couples seeking New Zealand residency will be treated the same under new immigration rules. Under the rules, all couples will have to prove they have living together in a genuine and stable partnership for 12 months or more at the time they lodge a permanent residency application [R2.5].

"Temporary residence" - Couples - married or otherwise - who had not been together for more than 12 months could still apply for temporary permits [Ibid].

In November 2011, an inconsistently applied government immigration policy which has frequently seen New Zealand gay and bi men separated from their overseas HIV+ partners was amended [R2.4].

In December 2002, the NZ Government has announced that family reunion applications will be treated equally regardless of the gender of applicants [R2.3].

NOTE:

Immigration law is subject to frequent change and you should consult a specialist immigration lawyer for the latest information.

Previously:

Effective March 1999, the Government decided to amend the Residence Policy to align the provisions governing the recognition of same-sex de facto relationships with those applying to heterosexual de facto relationships [R2.2].

In 1994, foreign spouses were granted immediate residency while foreign de facto spouses had to wait two years and foreign gay and lesbian partners had to four years [R2.1].

Courts & Tribunals

In April 2004, Auckland Family Court Judge Fleming awarded joint custody of a child conceived with donated sperm to the biological mother and her partner, and also gave the lesbian partner and biological father shared guardianship with the biological mother [R1.1].

The determination went beyond the initial agreement between the parties that the men have 14 days' access a year. The Judge awarded monthly access, increasing to seven days a month [R1.1].

The Courts have in more recent years moderated previously discriminatory attitudes towards gay men and lesbians.

Many such parents are granted custody following a breakdown of a marriage, however the primary consideration in any custody application is what is in the best interests of the child.

National

The Civil Unions Act 2004 sets out a system of registration and dissolution of civil unions between adult partners of relationships "in the nature of marriage", for same-sex couples and different-sex couples [L1.7], [R1.6].

If you are in a same-sex relationship, you and your partner should consider the situations that might arise were one or other of you to become incapacitated [R1.5].

Most of these situations can be addressed in an Enduring Power of Attorney made under the provisions of the Protection of Personal and Property Rights Act [L1.4].

Issues that may be included include management of your financial and property affairs, personal care and welfare guardianship. You may appoint your partner and/or another trusted friend in separate powers of attorneys for different aspects of your life should you so choose.

In July 2003, New Zealand's Parliament was to consider a proposal to give homosexual couples the legal rights akin to those enjoyed by heterosexual married couples [R1.3].

In March 2002, one of New Zealand's two openly gay MPs says he believes that this year's election will produce a Parliament, which will legislate for full legal equality for same-sex relationships [R1.2].

In August 1999, the Ministry of Justice put out a discussion paper calling for submissions asking what the legal rights of same-sex couples should be in a range of areas including marriage and the ability to adopt children [R1.1].

Courts & Tribunals

In December 2009, the Corrections Department blocked two van thieves from holding their civil union in prison as one partner was staying in NZ unlawfully [R2.1].

National

Under Section 21 (1) (m) the Human Rights Act it is unlawful to discriminate on the basis of "sexual orientation" [L1.5].

Under the Race Relations Act 1971 it is unlawful to discriminate by reason of the colour, race, or ethnic or national origins of a person or of any relative of that person [L1.4].

Previously:

Some union negotiated employment contracts ensured that benefits apply to "partners" as distinct from "spouses".

In September 2008, it was reported that Students at some Auckland schools must now formally declare their homosexualitiy if they wish to take a same-sex partner to the school prom [R1.3].

In September 1997, it was reported that at least two Auckland schools had broken the law by banning students from taking same-sex partners to their school balls [R1.2].

In November 1996, a gay police officer was told by police headquarters to change his private internet homepage because it breaches police rules [R1.1].

National

In 2004, the Minister of Health agreed to fund a small number of gender-changing operations with the Minstery of Health paying for the operations, the patient paying the pre-op consultation costs of about $1200 plus air fares, and post-operative support costs [R1.1].

Courts & Tribunals

In April 2010, a Christchurch man who was sexually harassed by his male boss was awarded $2,000 in compensation and $270 in costs by the Employment Relations Authority [R1.3].

In March 2010, the Employment Relations Authority found that a restaurant manager was continually harassed and unfairly dismissed by his boss, awarding the man who lasted only three weeks in the job $7,000 damages along with $7,600 in lost wages [R1.2].

In April 2000, a prominent Auckland lesbian won an appeal to have her harassment conviction overturned [R1.1].

National

On 08 December 2009, the "gay panic defence" in Section 169 of the Crimes Act was repealed by section 4 of the Crimes (Provocation Repeal) Amendment Act 2009 (2009 No 64) [L1.3].

Section 9 of the Sentencing Act 2002 [L1.2] provides that:

(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:

(a) … (g)

(h) that the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and

(i) the hostility is because of that common characteristic; and
(ii) the offender believed that the victim has that characteristic.

Previously:

In May 2002, the New Zealand Parliament passed the Sentencing and Parole Reform Bill 2002 in a second-reading 67-49 vote [R1.1].

Courts & Tribunals

In September 2000, a Court of Appeal ruling that censors had no right to ban two videos accused of gay-bashing was being hailed as a victory for free speech - or for hatred [R2.2].

On 09 July 2009, Ferdinand Ambach, 32, a dive master, was found not guilty of murdering Ronald Brown, 69, but guilty of manslaughter. Part of Ambach's defence was that Mr Brown, who was gay, made unwanted sexual advances to him [R2.1].

Courts & Tribunals

In October 2005, the Wellington District Court ruled that HIV-positive people do not have to tell their sexual partners of their condition, if they use condoms [R1.2].

Previously:

In September 1999, legal advice formed after an Appeal Court judgment was that people with HIV must tell sexual partners of their HIV status even if they have protected sex [R1.1].

National

On 08 December 2009, the "gay panic defence" in Section 169 of the Crimes Act was repealed by section 4 of the Crimes (Provocation Repeal) Amendment Act 2009 (2009 No 64) [L1.2].

On 11 July 1986, the Homosexual Reform Act 1986 was assented to and came into force 28 days later (08 August 1986) when consensual sex between same sex couples was decriminalised [L1.1]

National

Under the Property (Relationships) Act 1976 a same-sex partner of not less than three-years duration may have a claim to an interest in an intestate estate (where there is no Will) [L1.5].

In a disputed claim, the court first has to decide which property is "attributable" to the relationship.

If there is no Will, a partner may also make a claim against the deceased's estate under Section 77 of the Adminstration Act 1969 [L1.4]. The Administration Amendment Act 2005 amended by including "civil union partner".

A valid Will is necessary to ensure that a same-sex partner receives any intended benefit [R1.3]. It is advisable to have your Will professionally drawn up. Do not use "do-it-yourself" will kits which usually do not consider the situation of same-sex partners.

Under the Family Protection Act 1955 claims may be made against a deceased person's estate by same-sex partners [L1.2].

If your partner dies as a result of an accident and you were financially dependant upon him or her, you may be able to recover some compensation from the Accident Compensation Corporation.

Previously:

In August 1997, the New Zealand Law Commission wanted Parliament to curb the power of the courts to interfere with the provisions of a dead person's will, and enshrine in New Zealand law the recognition of same-sex relationships [R1.1].

National

The Marriage Act 1955 " … confines marriage to a union between a man and a woman … " [C1.3].

In November 2004, the Government announced that it would introduce legislation giving legal status to the relationship of men and women living together but will not recognise same-sex marriages [R1.2].

In December 2002, legislation recognising relationships, regardless of a couple's gender or sexual orientation, was being promoted by Labour's Russell Fairbrother and went to a Parliamentary ballot [R1.1].

Courts & Tribunals

On 17 December 1997, the full bench of New Zealand's High Court rejected a bid by three lesbian couples to legalise same-sex relationships [C1.3], [R2.2].

In June 1996, before Justice Kerr in the High Court, a lesbian couple lost their case to be legally married [R2.1].

National

On 06 December 2011, the Chief of the New Zealand Defence Force was reported to have provided formal approval for the establishment of the Defence Force Gay and Lesbian Information Service to support LGBT personnel [R1.3].

In 1993, the Defence Force lifted its ban on openly-gay personnel after the passing of the Human Rights Act, which prevents discrimination on grounds such as ethnicity, gender and sexual orientation.

Previously:

Homosexuality used to be illegal in [the] armed forces [R1.2].

In December 2001, the War Pensions Amendment Bill changed the Social Welfare (Transitional Provisions) Act by moving responsibility for veterans' pensions to the office of veterans' affairs. In line with the Social Security Act, it recognises de facto couples of a man and a woman as "married", but does not recognise same-sex couples in the same way [R1.1].

National

The law in New Zealand prohibits adoption by an unmarried couple however, individual gay men and lesbians may apply to adopt a child although a certain level of discrimination may be expected [L1.3].

Adoption Act 1955 Section 3, Power to make adoption orders [L1.3]

(1) Subject to the provisions of this Act, a Court may, upon an application made by any person whether domiciled in New Zealand or not, make an adoption order in respect of any child, whether domiciled in New Zealand or not.

(2) An adoption order may be made on the application of 2 spouses jointly in respect of a child.

(3) …

In June 2002, Parliament considered allowing gay adoption as part of an inquiry into adoption laws by a select committee last year.

Unable to reach agreement, the committee made no recommendations [R1.2].

In September 2000, the Law Commission recommended that same-sex couples should be able to adopt children [R1.1].

Courts & Tribunals

On 24 June 2010, High Court Justices John Wild and Simon France ruled (at page 23, para [73]) that it was "… permissible to interpret the expression "spouses" in s 3 of the Adoption Act 1955 so as to include a man and a woman who are unmarried but in a stable and committed relationship" [C2.6], [R2.5].

Although the ruling applied only to heterosexual couples, the judges said (at page 13, para [38]) it would break down a barrier and open the doors for other appeals, raising questions about whether the courts would expand the ruling to include same sex relationships [C2.6].

In August 2009, acting chief judge Paul von Dadelszen of the Family Court said gay and lesbian couples must be allowed to adopt children together [R2.4].

In February 1999, New Zealand's High Court ordered a woman who raised children with her former lesbian partner to pay child support [R2.3].

Previously:

In December 1998, a lesbian mother who won child-support payments from her former lover was awaiting the result of the other woman's High Court appeal [R2.2].

In August 1998, the Family Court in Hamilton awarded a lesbian client child support from her former partner [R2.1].

National

On 29 March 2001, the Property (Relationships) Act was passed by the Parliament and applies to couples who have been together for three years [L1.9].

Under the legislation assets acquired during the relationship will be split 50-50 [R1.8].

There is provision for contracting out of the provisions of the legislation, which came into effect in February 2002.

The Matrimonial Property Act does not apply to same-sex couples.

Previously:

In January 2002, family law specialists said, there had been a marked increase in people wanting to contract out of the Property (Relationships) Act, which will replace the Matrimonial Property Act commencing 01 February 2002 [R1.7].

In November 2000, the Parliament voted to give gay and lesbian partners of at least three years' standing the same access to courts for division of property or dissolution as divorcing married couples [R1.6].

In April 2000, a proposal went before cabinet to amend the Matrimonial Property Act to include same-sex and de facto relationships [R1.5].

In December 1999, the Minister of Justice said that gay and lesbian couples would get the same legal property rights as de facto heterosexual couples [R1.4].

In September 1999, a parliamentary select committee decided to delay legislation until 2000 that will give de facto couples similar property rights to married people when they split up [R1.3].

In August 1998, the Human Rights Commissioner wants the property rights of same-sex couples put on an equal footing to those in heterosexual relationships [R1.2.

If you intend to contribute finances to the joint purchase of property with your partner, you should -

• consider the "manner of holding" the property [R1.1]; and
• enter into a property or cohabitation agreement to protect your rights and limit your liabilities.

Courts & Tribunals

On 20 December 2011, the Broadcasting Standards Authority found that the use of the term “gay” in a One News story about Australians entering into same-sex civil unions in New Zealand –

“ … is commonly accepted and widely used in reference to homosexuals and homosexuality. It is not a derogatory term when used in this manner, and we disagree that it is in the same realm as “poofter” or “faggot”, as alleged by the complainant … [C1.2], [R1.1].

National

On 01 July 1996, the Domestic Violence Act [L1.4] came into effect, and by the Relationships (Statutory References) Act 2005, the principal Act now protects not only partners or ex-partners but also extended family members, household members, people in close personal relationships (such a care-givers or dating couples), children and people who are incapacitated [R1.3].

Violence or threats of violence are an assault and should be reported to the police.

As some individual police officers have yet to fully embrace the notion that same-sex domestic violence should be treated seriously, you might consider being accompanied by a trusted friend if you intend to report an assault.

As an alternative remedy discuss with your legal advisor the possibility of issuing a warning under the Trespass Act 1980 [L1.2].

If you have a real fear that someone will do you or a member of your household physical harm, an application may be made to have the aggressor enter into bond under Section 186 of the Summary Proceedings Act 1957 [L1.1] to keep the peace.