Determining The Length of a De Facto Relationship
“Living together as a couple” for three or more years – receipt of a solo parent benefit
By Clare Tuck. Clare is a lawyer at our Papakura office specialising in Relationship Property Law.
In the recent High Court decision of Selak v Smith, it was held that a de facto relationship did not exist during the period when the applicant, Ms Selak, was claiming a solo parent benefit.
The parties initially met as neighbours in Taupaki but Mr Smith then moved to Westport to begin a backpacker’s business. Between June 2014 and August 2015 Ms Selak remained in Auckland working part time (and claiming the solo parent benefit) but travelled to Westport on visits to stay with Mr Smith and help with his business. Her counsel argued that even though Mr Smith lived in Westport during this period and Ms Selak in Auckland, that their relationship was a de facto relationship. The Court found that a de facto relationship did not exist during this period; a condition of Ms Selak claiming the solo parent benefit was that she not be in a relationship in the nature of marriage with anyone else and this was the decisive factor.
Whether or not a de facto relationship exists, and the length of that relationship isn’t always a straightforward assessment. For a de facto relationship to exist, the legislation requires a couple to be over the age of 18 and “living together as a couple” for three or more years. However, sharing the same residence is only one aspect of “living together as a couple”, and a finding of no common residence is not fatal. The following factors are also relevant:
- the duration of the relationship
- whether or not a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
- the ownership, use, and acquisition of 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
Generally, once a couple who have been in a de facto relationship for three years or more separate, all relationship property is divided equally. If a de facto relationship or marriage is of less than 3 years’ duration the Court will generally divide property in accordance with each party’s contribution. If no de facto relationship existed, then the relationship property legislation would not apply.
For further advice on these matters contact a member of our Family Law team.