What is a de facto relationship?

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Parenting Order Agreement LawyerAre you already in a “de facto relationship” in the eyes of New Zealand law and you don’t even realise?

New Zealand law defines a de facto relationship as being between two persons (whatever their gender), who are both aged over 18 years old, who are not married to or in a civil union with each other and who live together as a couple.

The term “living together as a couple” encompasses many factors, not just how long you have been living together as a couple.

Why does it matter?
It is important to know whether or not you are in a de facto relationship as it determines how property (assets/liabilities) are to be divided in the event that the relationship ends (either by separation or death). Just because one of you owns an asset in your own name, does not necessarily mean that your partner does not have an interest in it (and therefore a claim to it).

If your relationship qualifies as a de facto relationship then anything that is “relationship property” will be subject to division according to the Property (Relationships) Act 1976 if the relationship ends.

What qualifies as a de facto relationship?

Living together for three or more years
A de facto relationship is typically defined as “a couple living together for three or more years”.

When you have a child together
If you and your partner have a child together; this automatically qualifies your relationship as a de facto relationship despite the duration of your relationship.

Relationships of short duration
Even if you have not been living together for three years, and don’t have children together, the Court can determine whether you and your partner live together as a couple, based on consideration of the following circumstances;

1) How long you have been together;
2) Whether you share a residence (i.e. do you share a bedroom together);
3) Whether a sexual relationship exists between you;
4) Arrangements surrounding your financial affairs (e.g. are you financially dependent on each other; do you share bank accounts etc.);
5) Ownership, use, and acquisition of any property (assets or liabilities);
6) Whether you have a mutual commitment to a shared life together;
7) The care and support of any children; (even if not biologically yours)
8) Who performs various household duties;
9) How the public views your relationship (e.g. do your friends and family see you as a couple?)

If you are in a de facto relationship, or if your relationship is heading in that direction, we strongly encourage you to enter into a Contracting Out Agreement. A Contracting Out Agreement can define:

• The assets which you seek to retain as your own;
• The liabilities which your partner has which you seek to be protected from;
• How property acquired by you and/or your partner after entering into the Agreement shall be defined (in terms of ownership and responsibility); and
• Sets expectations as to how assets/liabilities are to be divided in the event the relationship ends (by separation or death).

For further advice on whether or not your relationship qualifies as a de facto relationship, information on setting up a contracting out agreement or your rights when separating from a de facto relationship contact family lawyer, Ellen Harbidge by phone on 09 837 6890 or email
ellen.harbidge@smithpartners.co.nz

 

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