By Ella Buchanan, Lawyer, McWilliam Tyree Lawyers

When filling out various documents (visa applications, WINZ forms, census surveys, etc), you may find yourself scratching your head at the number of options available under ‘relationship status’. There is actually a difference between each option, and they can make a difference when it comes to what happens if there is a separation and division of relationship property. Let’s break it down:

The Legislation

In New Zealand, the legal framework governing relationships (and separation) is primarily outlined in the Property (Relationships) Act 1976 (“the PRA”).

The PRA sets out how property should be divided when a relationship ends, whether through separation or death. It applies to married couples, civil union partners, and de facto relationships, but the rules vary depending on the type and duration of the relationship.

What Is a De Facto Relationship?

Under the PRA, a de facto relationship is defined as a relationship between two people (of any gender) who are not married or in a civil union, but who “live together as a couple”. To determine whether a couple are in a de facto relationship, the court considers various factors under s2D of the PRA, including:

  1. The duration of the relationship
  2. The nature and extent of shared living arrangements
  3. Whether there is a sexual relationship
  4. Financial interdependence
  5. Ownership and use of property
  6. The degree of mutual commitment to a shared life
  7. The care and support of children
  8. The public perception of the relationship 

It is not necessary for all these factors to be met, for the Court to find a de facto relationship exists. It is a balancing exercise and depends on the facts.

Both parties must be at least 18 years old for the relationship to be legally recognised as de facto. However, the Court does have jurisdiction under the Care of Children Act to determine a de facto relationship between 16-17 year olds. This is uncommon, but may occur when necessary for housing or visa applications.

The Three-Year Rule

The PRA generally applies to de facto relationships that have lasted three years or more. Once this threshold is met, the law presumes that relationship property should be divided equally, similar to the rules for married and civil union couples.

However, relationships of less than three years, known as short duration relationships, are treated differently.

Short Duration Relationships

A short duration relationship is one that has lasted less than three years. For de facto couples, the law typically excludes them from the presumption of equal division unless certain conditions are met. These include:

  • The couple has a child together, or
  • One partner has made a substantial contribution (both financial or non-financial) to the relationship, and
  • Serious injustice would result if the court could not make a property order 

In cases where this is found to be the case, the court will divide property based on the contributions of each party to the relationship (financial and non-financial) rather than equal sharing.

For marriages and civil unions of short duration, the rules are slightly different. The equal sharing presumption still applies, however exceptions exist where:

  • Property was owned by one party before the relationship
  • One party made a disproportionately greater contribution to the relationship 

In these cases, the court may divide property based on each party’s overall contribution to the relationship, not just to the property itself.

Marriage and Civil Unions

Marriage and civil unions in New Zealand are legally recognised unions that automatically trigger the application of the PRA. Couples are presumed to contribute equally to the relationship, regardless of whether those contributions are financial or non-financial.

Civil union partners are treated the same as married couples when it comes to relationship property. Civil unions can be dissolved through a Family Court Dissolution Order, similar to divorce proceedings for married couples. The legal obligations and rights, including property division, spousal maintenance, and inheritance, mirror those of marriage.

If a marriage or civil union lasts three years or more, the equal sharing rule applies to all relationship property.