By Shaun Cousins

In a Family Court case a couple who kept two separate addresses during their ten year relationship were still found to be ‘living together as a couple’ and therefore in a de facto relationship.  This meant that when they separated, either party could make a claim for an equal share of any relationship property.

So what is required in order for you to be deemed to be living together in a de facto relationship? 

You and your partner must both be 18 years of age or older and you must be ‘living together as a couple’.  In order to determine whether you are ‘living together as a couple’ there are a number of factors that are taken into account. 

In the case above, the Court decided that although Mike still lived at his parents’ home and stayed some nights each week there, he and Emma were ‘living together as a couple’. 

It was noted that Mike spent considerable time at Emma’s home each week; that they had a mutual commitment to a shared relationship over ten years; that they had a sexual relationship; and that they lived a life that most would regard as ‘shared’.  They socialised as a couple, and entertained family and friends at Emma’s home in the way that a couple would. Emma also had two children from a previous relationship and Mike had been very involved in their lives.

This case is a reminder that even if you’ve chosen not to pack bags and boxes and move in together, you may still be deemed to be in a de facto relationship.

Every case is different and the factors referred to above are just some of the factors the Court takes into account.  Other factors include how your finances are arranged, the care and support of children, the performance of household duties, and the duration of the relationship. 

It should be noted that the Court will be cautious when making decisions that impose laws upon people who have clearly made the decision to continue to live separately. However, the Court must consider the relevant factors in each case.
If you are deemed to be living together in a de facto relationship for three years or more there is a presumption that all of your relationship property will be divided equally in the event that you separate.  This will include the ‘family home’ that you live in and any family chattels in that home.  It may also include your bank accounts, part or all of any superannuation policy, and, potentially, your business. 

If you do not want these laws to apply to you then you may need to enter into a Contracting Out Agreement (formerly known as a ‘prenuptial’ agreement).  This is an agreement between you and your partner that records how your property will be divided if you separate.  It must be in writing, signed by both of you and your lawyers. In addition you must both receive independent legal advice.

If you would like further information about what qualifies as a de facto relationship or about a Contracting Out Agreement, or you would like to arrange an initial consultation, contact us on (04) 4736850.

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.