If you are married or in a de facto relationship, (this includes same sex relationships) you must consider a Property Sharing Agreement in order to protect your assets if the relationship breaks down.

Property (Relationships) Amendment Act 2001

This new Act was passed in March 2001 and in very general terms, provides for the equal sharing of relationship property (regardless of whether or not this is owned in individual names) for de facto couples who break up on or after 1 February 2002, if the couple has been together for three years. The presumed equal division of property may apply soonerthan three years in certain circumstances, for example, if there is a child. In other
circumstances, it may be possible for one of the partners to obtain more than 50% of the relationship property and to obtain ongoing maintenance.

The Act will apply to married couples immediately upon marriage, regardless of the age of the partners. There are some specific provisions for marriages of short duration.

What is a de facto relationship?

For the purposes of the Act, a de facto relationship is a relationship between two people (of the same or opposite sex) who are both aged 18 years or older and who live together as a couple, but are not married to each other. Whether or not two people are deemed to live together as a couple can be uncertain and will depend on a number of factors including:

The duration of the relationship;
The nature and extent of common residence;
Whether or not a sexual relationship exists;
The degree of financial dependence between the parties;
The degree of mutual commitment to a shared life;
The ownership, use and acquisition of property;
The care and support of children;
The performance of household duties; and
The reputation and public aspects of the relationship.

Property Sharing Agreements

A property sharing agreement can help to reduce the financial risk and uncertainty of what will happen in the event of a relationship break down by stating what should happen to the partners' individual and jointly owned assets. If there is no property sharing agreement, one partner may suffer very significant financial loss if the relationship breaks down and a claim is made. In general, it is recommended that all couples should consider entering into such anagreement. Note that different rules apply depending on whether an agreement is entered into before 1 August 2001.

This is a general summary only and should not be taken as a substitute for specific advice.

Kristina Andersen is an Auckland lawyer with a special interest in family law and relationship issues.

Email: find@aucklandlawyer.co.nz
Web site: Kristina Andersen

May 2001