When Does A De Facto Relationship Begin For Relationship Property Purposes?

Relationship property division rules are important to couples in De Facto relationships as well as those who are married or in a civil union. It is important to know when a De Facto relationship starts as that will determine when you reach the 3-year point for equal division of property.

Relationships can be complicated. In modern society, with less people getting married or entering into a civil union, it is getting harder to determine what constitutes a relationship when we talk about entitlements and claims on relationship property.

With it common for people to live together prior to engagements or marriages, having children before marriage, and having physical relationships earlier, when does the law define a De Facto relationship has begun and “dating” has ended?

A  De Facto relationship is a relationship between 2 people (regardless of gender) who are aged 18 years old or more, who live together as a couple and who are not married to each other, or in a civil union with each other.

It is easy to determine the age and marital status parts of that definition. The difficulties often lie in what it means to be living together as a couple.

There are several relevant matters that a Court can take into account to determine whether two people are living together as a (De Facto) couple.

The first factor is duration of the relationship. It is more likely that a De Facto relationship is in existence where people have been in a relationship for a longer period of time. There are exceptions to this however, especially for older people, where companionship is common.

The second factor is the nature and extent of living together in a common residence. This can be a good indicator of a De Facto relationship, but is not determinative. For example a boarder or a flat mate may reside in a common residence, but it does not make it a De Facto relationship.

The third factor is whether or not a sexual relationship exists. This usually strengthens the previous two factors but yet again is not strong enough on its own to determine a De Facto relationship. A one-night stand, or short but frequent sexual relationship, will often not give rise to a De Facto relationship, especially if the other factors are not present.

The fourth factor is the degree of financial dependence or interdependence or arrangements for financial support between the parties. If one party is financially supporting the other, or is contributing towards the joint cost of living, or if the parties hold joint bank accounts, the stronger the prospect of there being a De Facto relationship in existence.

The fifth factor is ownership, use and acquisition of property. If you buy or use household items together and do so over a period of time, the more likely a De Facto relationship will then exist. Keeping items and property separate will lessen that impact.

The sixth factor is the degree of mutual commitment to a shared life. This incorporates holidaying together, buying significant joint assets together, and there being exclusivity in terms of a romantic relationship. Talking to each other about joint future goals and plans for a shared life together can also lead to a De Facto relationship being defined.

The seventh and eighth factors are usually interlinked, being the performance of household duties and care and support of children. Whereas household duties could be present in a flatting situation, this needs to be linked with other factors, such as a commitment to a shared life. With child care put in the mix, it shows a more domesticated approach, and the higher likelihood that there is a presence of a mutual commitment to a shared life.

Finally, the reputation and public aspects of the relationship is a big factor. If you present yourselves to family, friends, and the general public as a couple, the more likely that your relationship is considered to be a De Facto relationship. Presenting as a committed couple outside of the home can be present if you are dating, but it is the sustained public presence of exclusivity that will give rise to a potential De Facto relationship.

No one singular factor locks you into a De Facto relationship, and these factors should work as a guide only. Most De Facto relationships have several of the above factors present.

However, if you are unsure of your status and you have been seeing someone for more than a few months, it is always good to review these factors to see whether a De Facto relationship exists. This is because a De Facto relationship of 3 years (or less if there are children of the relationship) will mean the rules about equal division of property apply. It is important to know when your De Facto relationship started so you know when the 3 year deadline passes.

Shaun Cousins
Family Lawyer
Wellington