Are you dating or in a de facto relationship?

Tuesday 2 October, 2018

Article was last reviewed and updated for accuracy June 2023.

One issue that commonly arises is whether a couple are in a de facto relationship.

The reason why this is so important, is that the equal sharing rules of relationship property law[1] apply to de facto relationships of 3 years or more.

Relationship property law may also apply to de facto relationships under 3 years, where there is a child of the relationship and other factors are met. In this situation, the share of each de facto partner in the relationship property will be determined in accordance with each partner’s contributions to the relationship.

Relationship property includes:

• The family home whenever acquired
• Motor vehicles
• Household furniture and items
• The portion of your KiwiSaver attributable to your relationship
• Your income

Definition of de facto relationship

A de facto relationship is defined as a relationship between two people who are over the age of 18 and live together as a couple.

Whether you are considered to “live together as a couple” depends on an assessment of your circumstances. You do not have to actually be living together to qualify.

Relevant factors include whether:

• You share a residence
• You have a sexual relationship (this does not need to be exclusive)
• Money is shared or used to support one another or if you are financially independent from one another. For example, do you have a joint bank account?
• You have bought assets together, such as a house, furniture, cars
• You have a commitment to a shared life
• You care and support children of the family (including if you care for nieces and nephews)
• One party does the household duties, or you share them
• You hold yourself out as a couple. What is your Facebook status? How do your friends and family view you?

Not all of these factors need to be met for you to be in a de facto relationship.

Equal sharing and contracting out agreements

Once a couple has been in a de facto relationship for three years or more, then any relationship property will be shared equally, should the couple separate or if one of them dies.

If you are in a de facto relationship, or about to enter into one, but do not want the equal sharing rules to apply after three years, you may wish to enter into a contracting out agreement (also known as a pre-nuptial or relationship property agreement).

Examples where we commonly see the need for an agreement includes:

• A couple is purchasing a house together and one partner is being gifted funds from their parents or is using inherited funds;
• One or both people has existing property, such as a home;
• One or both people have their own business.

You can enter into a contracting out agreement at any time, even if you have crossed the three-year threshold or have had children together. However, people often find it easier to discuss and finalise agreements earlier on in their relationship.

Contracting out agreements can be reviewed and updated as a relationship endures or as circumstances change.

Looking for advice?

If you would like to receive a free information pack about your situation, click here. 

Otherwise, if you would like to discuss these issues further, please contact our relationship property team.