When dating becomes De Facto

New Zealand's Property (Relationships) Act 1976 (“Act”), which provides for a property sharing regime on separation and death, applies to couples in a de facto relationship as well as in marriages and civil unions. Unlike marriage or civil union, there is no formal commencement date of de facto relationships, so determining whether one exists, and when it started, can be difficult.

It is commonly assumed that it begins when a couple moves in together or reaches another milestone in their relationship. However, the Act’s legal position is more nuanced. The question is whether two people are "living together as a couple", and that assessment requires a careful consideration of the substance of the relationship. “Living together” does not always require cohabitation.

Courts must consider the entire relationship, including factors such as the duration of the relationship, the nature of any common residence, financial arrangements, ownership and use of property, care of children, household responsibilities, reputation and public presentation, and the degree of mutual commitment to a shared life. No single factor or event is decisive.

Relationships often develop gradually, moving from dating, to increasing commitment, to a fully shared life. At some point on that continuum, the de facto relationship will have begun.

Living together for a lengthy period does not automatically establish a qualifying relationship. Likewise, the existence of children, a sexual relationship, or shared finances will not necessarily be decisive. Equally, the absence of any one of those features will not automatically prevent a relationship from qualifying. The focus is always on the overall nature of the parties' lives and whether they have genuinely integrated them in a way consistent with living together as a couple.

Case law emphasises that the most significant indicator is often whether the parties have objectively demonstrated a mutual commitment to a shared life. This requires more than intimacy, affection or assistance from one party alone. The evidence must show that both people have integrated their lives in a way that reflects a genuine couple relationship. This concept can be reflected through objective evidence such as future planning, shared decision-making, emotional and financial support, integrated family arrangements, and sacrifices made for the benefit of the relationship.

Modern relationships take many different forms. Couples may maintain separate residences because of work commitments, health considerations, parenting arrangements, or personal preference. Some couples keep their finances largely separate, while others pool resources extensively. These arrangements are not determinative. Instead, they form part of the broader context.

Generally, the Act’s regime applies once a de facto relationship reaches three years. The most prudent approach for those who are in a relationship and want to understand how the Act may affect them, is to get legal advice before the relationship passes that three-year point. The advice may recommend entering into a contracting-out agreement to ensure the Act’s regime does not apply. At TGT we regularly provide that advice and assist with preparing and negotiating contracting-out agreements.