Living together - NZ Law Society
CONTACT · Home · NZ Legal News Whilst a de facto relationship is likely to involve cohabitation, a common residence is not a prerequisite3. Little attention has been paid to the Relationships Bill, but it makes major changes to the legal status of all de facto couples, a move critics say is unfair on those. There have been significant changes in the law and society's attitudes towards marriage and de facto relationships over the course of the past 30 years.
Is it fair or appropriate, then, to impose such obligations on two people who are co-habiting and have sex, but want to limit the relationship to that? Should two year-olds flatting together who form a temporary sexual relationship be automatically treated as if they were married?
MPs on the committee define the bill as a 'tidy-up" as many of the changes are to minor or obscure laws.
While it seems the bill won't revolutionise de facto couples' lives overnight, it will enshrine in a much broader way a trend already begun to fundamentally change their legal status. It raises questions about whether, in the pursuit of improving its human rights record, the state is moving to breach the rights of individuals to determine the boundaries of their own relationships.
The Social Security Act already prescribes that heterosexual de facto couples are considered to be living in the nature of marriage when it comes to benefits or superannuation.
A number of submitters in favour of civil union have complained about the treatment of de facto couples under the benefit laws. Although court rulings have previously forced Work and Income to amend the way it defines de facto, the Government has no intention of significant changes in this area. The act determined that after three years of living together de facto couples who split would generally have to divide their property equally, unless alternative legal arrangements were made.
Some argued that people should be able to opt into that arrangement, rather than pay a lawyer to draw up an opt-out contract. The definition of de facto included same-sex couples, whose relationship then lacked protection under the law. Like the benefit laws, the Relationship Statutory References Bill does not impose a time period after which a de facto relationship is treated as one in the nature of marriage.
It appears it could now legally apply from day one of co-habitation. This, too, is causing concern and may yet result in time frames being imposed in cases where extra responsibilities or obligations would flow from the change.
Property law for de facto couples attacked - NZ Herald
Different definitions of de facto may be applied to different situations. Another major issue is the concern about the primacy being given to the "couple" relationship in law. A number of submitters have argued their first commitments and obligations are to others, whether a family member or a friend with whom there is not a sexual relationship.
They effectively want stronger protections for "next of kin" type relationships. The duration of the relationship Whether they live in the one house Whether they have a sexual relationship The degree of financial dependence or interdependence The ownership, use and acquisition of the property The degree of mutual commitment to a shared life The care and support of children The performance of household duties The reputation and public aspects of the relationship This is not an exhaustive list of those matters that may be taken into consideration.
Are we de facto partners or just friends with benefits?
Nor is it necessary that a finding in respect of any one or a combination of these factors is necessary to find the existence of a de facto relationship. In one case it may be that a single factor may be decisive, whereas in another an accumulative approach may be what is called for.
Certainly there are many relationships in which the participants could genuinely claim to be uncertain as to whether or not they come within the statutory definition. So what sort of things do couples usually see as being significant and are they potentially way off base in their thinking?
But we live in our own homes? Sharing a common residence is not a necessary condition of living together. It is possible that a couple could maintain two separate residences, yet because of their financial interdependence, the presence of children whether that be children of the relationship or children of just one of the partnersand the way they hold themselves out as a couple, they could be regarded as being in a de facto relationship.
Of course, couples that do not live together, maintain complete financial independence and do not pool their resources are unlikely to be regarded as living in a de facto relationship. A sexual relationship, as nice as it may be, is NOT necessary for there to be a finding that a de facto relationship exists.
What is a de facto relationship?
It is possible to have a de facto relationship without having a sexual relationship. The fact is the issue of whether a relationship is a de facto relationship in terms of the Act and the date that it began will be questions of fact for the Court. One of the key things a court will consider is if there is a mutual commitment between the parties to a shared life, whether they are both of the same mind or view as to where their relationship is at and how that is held out to the world.