Major law reforms in 2001 drastically changed the law for de facto partners by extending the Property (Relationships) Act to include such relationships.

What is a de facto relationship?

A qualifying de facto relationship exists where two people over the age of 18, who are not married, are “living together as a couple”. Gender is not relevant. To determine whether two people are living together as a couple the Court will consider a range of factors:

• The length of the relationship.
• The nature and extent of common residence – the parties living arrangements.
• Whether a sexual relationship existed.
• Any financial dependence or interdependence or financial arrangements between the parties – whether the parties shared financial resources or financially supported each other.
• The ownership, use and acquisition of property – whether the parties jointly owned, acquired and shared property.
• The degree of mutual commitment to a shared life.
• The care and support of children.
• The performance of household duties.
• The reputation and public aspects of the relationship – how other people viewed the relationship.

None of the above factors are compulsory but they are each considered to determine the ultimate question of whether the parties are “living together as a couple”. This can be a particularly difficult assessment for the Court. When two parties marry there is an unequivocal line which divides pre-marriage from post-marriage and with that line comes legal responsibilities. In a sense the parties opt-in to the legal implications of marriage. The same does not apply to de facto relationships. De facto relationships often evolve over time to eventually morph into a qualifying relationship. There is no clear dividing line.

De facto relationships of short duration – Recent High Court Decision

The recent High Court case of Miller v Carey [2015] NZHC 887 highlights the importance of timing when it comes to assessing de facto relationships. The parties in that case did not dispute they were in a qualifying de facto relationship at separation, but they disagreed on the starting point of that relationship. The dispute was critical as the male partner was claiming the qualifying relationship lasted less than three years. If a marriage, civil union or de facto relationship is for a period less than three years then under the Property (Relationships) Act it will be categorised as a relationship of short duration.

In Miller v Carey the Judge formed the view that initially the relationship between the parties was merely a casual liaison, then a boyfriend-girlfriend relationship that transformed into a qualifying de facto relationship.

Facts

To determine when the transformation occurred the Court considered each of the factors listed above. Of particular importance was:

• The female partner had retained a “safety net” of a second residence for some time after she claimed the qualifying relationship began.
• Further, her eventual decision to fully move in with the male partner was because she was asked to move out of her other residence; there was no independent decision.
• In assessing the degree of mutual commitment to a shared life the Court acknowledged mutuality is particularly important, that one person wholly dedicated to a joint life with another is unable to bind the latter to an undesired relationship. In this case the parties clearly enjoyed quite separate aspects of their life up until they purchased a joint property. In the earlier stages of the relationship the female partner was hoping for a permanent commitment while the male partner was somewhat ambivalent.

Conclusion

These circumstances worked against the female partner with the Court concluding the period of the relationship that qualified was less than three years and therefore the de facto relationship was one of short duration. Where a de facto relationship is one of short duration then the Court cannot make an order dividing property unless there is either a child of the relationship or the claimant party has made substantial contributions to the relationship, and the failure to make an order would result in serious injustice. Once the first hurdle is overcome then instead of sharing equally in the relationship property the share of property for each partner will be determined based on the contributions they made to the relationship.

Contributions is not just monetary contributions but can include intangible contributions such as the management of the household, the care of children, foregoing a higher standard of living and the provision of assistance or support.

Summary

So while de facto partners are largely treated the same as spouses and civil union partners under the Property (Relationships) Act, in practice the uncertainty around whether partners are living together as a couple can make it hard to understand your rights and responsibilities. There also can be some difficult hurdles to pass, especially where the relationship could potentially be classed as one of short duration.

"The information posted on this website is prepared for a general audience, without investigation into the facts of any particular case. This information is no substitute for legal advice and does not create a lawyer-client relationship; you are advised to consult with a lawyer on any legal issue."