De Facto Relationships: Short of three years; short of options?

Kesia Denhardt*

It is well known that some of our key family law statutes provide for a cascading priority as to the nature and length of a relationship. It is for precisely this reason that family lawyers are often confronted with disputes as to when a relationship commenced or concluded, as this may lead to a real and appreciable difference in result for a client.

Marriages and civil unions are treated differently to de facto relationships, and relationships of three years or more are dealt with differently to those of shorter duration. Some have questioned the ‘magic’ in the three-year mark, but for the purposes of this article this is neither here nor there – the line must be drawn somewhere.

This article examines the impact when a relationship that is de facto in nature, and is less than three years in length, come together. Specifically, when it comes to the issues of property division, spousal maintenance and family violence.

Property (Relationships) Act 1976

It is well understood that a relationship that has endured for less than three years is one of ‘short duration’ under the Property (Relationships) Act (“the PRA”). 1

Whether a relationship qualifies as a ‘de facto relationship’ under the PRA is determined in accordance with its definition. This includes whether two persons ‘live together as a couple’ where all circumstances of the relationship are to be taken into account, such as those comprising the (non-exhaustive) list that are relevant in a particular case. 2

Whereas marriages are captured by the Act regardless (but involve a modified approach to division where they are of short duration), 3 when it comes to short duration de-facto relationships, property cannot be divided under the PRA unless the Court is satisfied that that there is a child of the relationship or that the applicant has made substantial contributions to the relationship, and that the failure to make an order would result in serious injustice. 4 A two-stage test is therefore applied.

While the term ‘contribution’ is defined under the Act, 5 ‘substantial contribution’ is not. As one would expect, the way the contributions-based analysis under this provision works has been the subject of deliberation and debate. In the case of Lawson v Perkins, 6 Asher J stated: 7

“References to variances from a supposed ‘norm’ of contributions are not of particular assistance. Indeed, it is difficult to postulate a supposed norm of contributions, or indeed a ‘norm’ of a de facto relationship. What is helpful is the focus, seen in most of the decisions on substantial contributions, on the natural meaning of the word ‘substantial’. Substantial is defined in the New Zealand Oxford Dictionary as of ‘real importance or value’. There is no need to refine the meaning of ‘substantial’ further. It has a clear meaning and can be properly applied without refinement.”

Likewise, the term ‘serious injustice’ in this context is not defined, leaving expansive room for legal argument. Notably, in the case of R v F, 8 the Court rejected the argument that the applicant’s ability to resort to civil remedies meant no injustice would occur if orders were not made under the PRA.

Ultimately, where both limbs of the test are met, the share of each partner in the relationship property is to be determined in accordance with the contribution of each partner to the de facto relationship9 (not the property). In the case of S v W 10 Justice Chisholm held that the determination of contributions required a two-step process: identifying and removing from the assessment of contributions property found to be separate property, and then determining overall contributions to the relationship combining nonmonetary and financial contributions. There is to be a ‘balancing test’ between the contributions made by each party and the benefits each received from the relationship. 11

Importantly, the relevant provision provides that:

(a) Its engagement does not prevent a Court from making a declaration or order under section 25(3) of the PRA, even though the de facto partners have lived in a de facto relationship for less than three years;

(b) It is subject to sections 15 to 17A of the PRA. The corollary of this, in respect of the latter, is that an economic disparity claim can be launched in de facto relationships of short duration.12

Family Proceedings Act 1980

Under the Family Proceedings Act ("FPA"), the starting position is that if a de facto relationship – which is given the same meaning as under the PRA13 – has lasted less than three years, the Court has no power to order maintenance. That is the case whether (or not) the grounds for making an order are (otherwise) met.

However, akin to the PRA, there is an exception to this where (precisely) the same additional criteria are satisfied.14

It is important to note that the relevant provision requires that ‘serious injustice’ would result for the de facto partner, not the child(ren) of the relationship. In the case of JMP v CAM 15, the Court summarised the factors it relied upon to establish this high threshold as follows:

(a) The age of the (young and dependant) children;

(b) That there was no relationship property to be divided. The respondent came from privileged circumstances and there was a complete contrast in the parties’ situations;

(c) That during the short time they were in a relationship, there was a role division between them and an expectation the applicant would look after their child;

(d) Following separation there was an acceptance by the respondent to provide support and he did so;

(e) The respondent was criticised for inappropriately linking care arrangements to spousal maintenance while under cross-examination;

(f) The applicant was engaged in a course of study;

(g) The comparative financial positions of the parties.

The Court considered the earlier family court case of X v Y 16, in which there was a mother caring for one child. There, it was held that there was no liability for final maintenance in de facto relationships of short duration, notwithstanding that there was a child of the relationship. However, the Court distinguished that case on various facts, including that the responsibility of caring for two children (and not one) was necessarily greater, and that in X v Y the applicant was not upskilling nor requiring further education, there was no reason why she could not return to the field of work in which she was previously involved, and that she had demonstrated that she was able to undertake paid work irrespective of her childcare duties.

The approach taken by Brewer J in the subsequent case of RMA v JB, 17 involving a de facto relationship of short duration in the context of interim maintenance, should be noted. There, it was held that interim maintenance could be awarded before the determination of the (then unresolved) issue of whether the serious injustice test was met. That was on the basis that the jurisdiction to award interim maintenance18 is different to that of maintenance.19

Needless to say, section 182 FPA is available only to those who were married (and that marriage has been dissolved).

Family Violence Act 2018

Perhaps obviously, a person can access the remedies available under the Family Violence Act 2018 ("FVA") where they have been in a de facto relationship with the perpetrator, regardless of the duration of same.

Working backwards, the FVA provides that a person may apply for a protection order, or a police safety order may be issued, against another person with whom they are or have been in a ‘family relationship.’ 20 This is broadly defined as being a spouse or partner, family member, those who ‘ordinarily share a household’ or who have a ‘close personal relationship.’ 21 ‘Partner’ is (again broadly) defined to include a ‘de facto partner’, 22 which is not itself defined.

The FVA then enables any person who makes an application for a protection order to also apply for an occupation or tenancy order at any time. 23

Of course, this is entirely in keeping with the purpose and principles of the Act, including that all victims of family violence should have access to services to help secure their safety from family violence, and that perpetrators should face effective responses to, and sanctions for, family violence.24

Other relief?

It does not necessarily follow that if the above provisions work against a client’s objectives in relation to their property and finances at the end of a short duration de facto relationship, all is lost. There may be other redress available in their circumstances, for example, by way of constructive trust, promissory estoppel, or otherwise.

The obvious point – that any outcome is possible by negotiated settlement – is also worthy of mention. Even if a client’s situation appears to fall outside statutory requirements, leaving them excluded from the scope of the Act under which they seek recourse, there is nothing preventing the parties from agreeing upon an (out of Court) resolution which efficiently and equitably takes into account the unique circumstances of their relationship.

*This article was written by Kesia Denhardt, a barrister at Kate Sheppard Chambers and a family law specialist. Kesia has practised family law exclusively since 2009, handling all types of family law matters, with a particular interest in complex parenting and protection matters, relationship property and financial issues arising out of a separation, and reproductive law (adoption, surrogacy and embryo donation). See kesiadenhardt.co.nz for more information.

REFERENCES

1 Section 2E. It is noted that as set out therein, a relationship of short duration may also include one which has lasted for a period of 3 years or longer where, having regard to all the circumstances of the relationship, the Court considers it just to treat the relationship as one of short duration.

2 Section 2D. This section makes clear that (unlike marriages and civil unions) de facto relationships come to an end when the de facto partner cease living together as a couple.

3 Section 14 (mirrored by section 14AA in respect of civil unions).

4 Section 14A(2), noting that the term ‘child of the de facto relationship’ is (widely) defined under section 2 – which will mean that some short duration de facto relationships meet the first stage of the test that would not have otherwise. It should be noted that in the case of ‘on/off relationships’, each time the de facto partners resume living together as a couple is treated as a new de facto relationship – creating a series of discrete short duration relationships – each to which this assessment will need to be separately undertaken. In this regard, see Bourneville v Bourneville [2008] NZCA 520, [2009] NZFLR 520 at [20] and [21], and DSA v JRT [2012] NZFC 7836 at [25] – [27] and BRL V NAR FC Christchurch FAM-2008-009-1355, 17 November 2011.

5 Section 2.

6 (2007) 26 FRNZ 946, [2008] NZFLR 401 (HC).

7 At [70]. Also see Schmidt v Jawad (2003) 23 FRNZ 101, [2003] NZFLR 1050 (FC) and LS v ZJ [2005] NZFLR 932 (FC), both of which Asher J considered, and the later decision of Justice Wild in Lynskey v Donovan HC Blenheim CIV-2006-406-293, 2 November 2010.

8 FC Rotorua FAM-2006-069-80, 4 August 2009.

9 Section 14A(3).

10 (2006) 25 FRNZ 49, [2006] 2 NZLR 669 (HC).

11 Schmidt v Jawad (2003) 23 FRNZ 101, [2003] NZFLR 1050 (FC) at [40]. See, for example, Miramontes v Brennan [2017] NZFC 4298 in which Judge Moss found that a 90% division in favour of the female partner was justified following a relationship of two years and four months, and Payne v Bradley [2017] NZFC 3207 in which Judge Partridge ordered a 95% division in favour of the male partner after a relationship of ten months. Also see Bradford v Te Hei [2021] NZHC 3485.

12 See JJA (aka SA-B) v BLD FC North Shore FAM-2008-044-833, 13 May 2011 in respect of section 15A (where that provision was engaged despite the Court’s determination that there was no serious injustice and so it could not make orders under the PRA.

13 Section 60.

14 Section 70B. It is noted that at section 2, ‘contribution’ is given the same meaning as it has under the PRA and ‘child of the de facto relationship’ is also ascribed a similar meaning.

15 [2012] NZFC 7253. It is noted that whilst this case was later appealed to the High Court (CAM v JMP [2013] NZHC 592) the findings as to section 70B were not seriously challenged.

16 FC North Shore FAM-2005-044-1670, 2 October 2008.

17 [2013] NZHC 2984; [2014] NZFLR 169.

18 Under section 182.

19 Final maintenance – past or future – under section 70.

20 Sections 60 and 20 (respectively).

22 Section 8.

23 Sections 115 and 121. That person can then also apply for an ancillary furniture order or furniture order under sections 127 and 133 (respectively).

24 Section 4(j) and (h).