Question: My partner and I had been together for four years, but during this time we've spent weeks, and even months apart. Now we're looking at separating, but we aren't sure whether the length of our relationship means we'll have to divide our property among us. Can you help?

Answer: It may be difficult to understand your legal position if you have had an on again and off again relationship. You may need guidance on your options and legal position.

Whether you will need to divide your property under the Property (Relationships) Act 1976 will depend on whether your relationship can be classed as "de facto relationship" and if so, how long your de facto relationship lasted which can be tricky where there have been periods of separation.

What is a de facto relationship?

A de facto relationship exists when two people aged 18 years or older are in a relationship and "live together as a couple."

A de facto relationship is not deemed to have begun from when you start dating. Instead, there is usually a point in time when the relationship has become more serious and committed. Often a de facto relationship is said to exist once a couple start living together, however, a shared residence is not always necessary.

Factors

In deciding whether a couple is in a de facto relationship, the Court will look at a number of factors, although none of these are necessary, by themselves, for a relationship to be called "de facto."

These factors include the duration and nature of the relationship, the nature and extent of shared residence, whether a sexual relationship exists, how the finances operate between the parties, the ownership and use of property, their commitment to a shared life, the care of children and performance of household duties and how others such as friends, family and colleagues perceive their relationship.

If a de facto relationship is established, then the de facto relationship needs to have lasted for three years for it to be considered under the Act (the exceptions being where there is a child of the relationship or significant contributions in which case your property will be divided in accordance with your contributions).

Is there relationship property?

If there has been a de facto relationship of three years or more then, generally speaking, the property acquired by either person during the relationship becomes "relationship property". At the end of the relationship, relationship property is to be divided equally between the two people, unless one of a few limited exceptions apply.

This is all straightforward. But what happens when there have been periods of separation within the relationship?

Periods of Separation

Generally, the law is clear about a relationship needing to last three years before it is classed as "de facto". However, where a couple breaks up, gets back together, and then breaks up again, the court will consider the length of time a couple resumes living together with the motive of reconciliation.

Intermittent Relationships

If the length of time between the first separation and reconciliation is three months or less, then the court can exclude that short period when calculating the overall duration of the relationship. An example is where the parties are separated for a couple of months and attending couples counselling.

Where the length of a first separation is more than three months, this is more likely to be considered a final separation. This is set out at section 2E of the Property (Relationships) Act 1976.

Sequential relationships

Sometimes partners will have been in two different relationships together, one after the other. The common example is a de-facto relationship preceding a marriage. If so, the period of each relationship is added together to determine the overall length of the relationship.

Intent to reconcile

This period of reconciliation must happen with the intent to also resume the relationship. This means that if a separated couple start living together again purely for financial reasons (e.g. neither can pay rent living alone) or for platonic reasons (e.g. living as roommates rather as a couple) then the period of reconciliation will not contribute to the total length of the relationship.

The cost

The legal costs and time taken to establish these factors is often significant especially where the dates of separation and reconciliation are difficult to determine. The evidence needed to prove your claim can be unclear and the cost of lawyers and other professionals can be disproportionate to the property pool. Consider taking an approach such as informal or formal mediation. You could also visit your local Community Law Centre or Citizens Advice Bureau as a starting point.

Summary

Relationships can be intermittent with couples spending time apart and time reconciled. When considering whether the relationship is a de facto relationship that has lasted three years the Court may look at the length of time any reconciliation lasted. Where it a period of separation was no longer than three months, it may not have any detrimental effect on your ability to divide relationship property. If there is a period of separation that is three months or more, then you may find that you have two distinct de-facto relationships.

When a relationship is considered to start or end are very factual and evidence-based enquiries. It is advisable to consult with a family lawyer, or community law centre if your relationship has been on again and off again so you can review your legal position.

This article was first published with the NZ Herald.