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Are you in a de facto relationship without knowing it?
Do you keep spare clothes in your partner’s car or flat?
Do you keep a spare toothbrush at your partner’s house?
Have you become extra cosy with a flatmate?
Do friends and family think you’re “together”?
Some of these might seem like trivial questions, but in the eyes of the law you could be in a de facto relationship, without even realising it. This means if you and your partner go your separate ways, or you pass away, your partner could be entitled to half of your property (or more to the point what you thought was “your” property but has now become “relationship property”). This can have major consequences not only for you, but for your family members, including any children who could lose their inheritance (despite what your Will may say).
Being in a de facto relationship isn’t always black and white. You can find yourself in one without knowing it, as it can happen gradually. This makes it hard to determine when “dating” ended and a de facto relationship began. You might think one way, but the court may decide otherwise.
In deciding whether a de facto relationship existed, the Family Court considers each case on an individual basis, taking into account nine factors of the relationship, with a different emphasis on each. This includes:
Do you stay over or live together? (you could live apart but often stay the night at each other’s house)
Is there sharing of money or financial dependency? (ie do you pay some of your partner’s bills or groceries?)
Is there care/support of children? (which may be from previous relationships)
Do you own, use, buy or share property together (eg lending your car, sharing furniture, using or sharing chattels etc)
Is there commitment to a shared life? (this can be determined in many ways including booking events/holidays in advance, acquiring pets, financial/time/emotional commitments etc)
Is there a sexual relationship?
Are you viewed by others as a couple?
Who performs the household duties?
How long have you been together?
Not all of these factors need to be happening in order to fall under the definition and to establish relationship property and a sharing of assets.
When a de facto relationship falls within the definition of the Property (Relationships) Act 1976 and lasts for at least three years, if the relationship ends (due to death or a break-up) there is a presumption of 50% sharing of property. Property can include the family home, savings accumulated during the relationship, kiwisaver/superannuation, joint bank accounts, assets/liabilities which were for mutual use and benefit (eg a car, furniture or credit cards) and assets acquired during the relationship etc. This can result in your partner making a claim against you (or your estate - despite what your Will might say).
If you think your relationship could fall into the de facto category (now or in the future) and you want some advice on how to protect yourself, have a chat with us.
We can help you understand how you may be affected and suggest some options.
Debra Barron is a qualified Barrister and Solicitor and Principal of ClearStone Legal.
p: 09 282 4192
