Dividing your property when you split up (“Relationship property”)
Who’s covered by the Property (Relationships) Act
What kinds of relationships does the Act cover?
The Act covers:
- married couples
- civil union couples
- de facto couples whose relationship has lasted at least three years (with some exceptions).
The Property (Relationships) Act applies both when a couple separates and when one of the partners has died.
Note: An application under the Property (Relationships) Act to divide the property of a married couple or civil union partnership must be made within a year of the couple’s partnership being dissolved by a court order (see “Divorce: Getting a “dissolution” order” in this chapter) or, in the case of a de facto couple, within three years of the relationship ending.
What is a “de facto relationship” under the Property (Relationships) Act?
For the purposes of the Property (Relationships) Act, a de facto relationship is a relationship between two people (whether of different sexes or the same sex) who are both aged over 18 years and are living together as a couple, but are not married to, or in a civil union with, each other.
When deciding whether two people are living together as a couple, a number of factors are taken into account:
- the length of the relationship
- whether the parties are living in one house
- whether they have a sexual relationship
- the degree of financial dependence or interdependence
- how property is owned, used and obtained
- the degree of commitment to a shared life
- the care and support of children
- the performance of household duties
- the public image of the relationship.
Whether there is a de facto relationship in terms of the Property (Relationships) Act and if there is, on what date it began, will be questions of fact for the court to decide. If the court decides that two people are in a de facto relationship, there is then the question of what rules will apply to the division of their property. The Act will usually only apply to a de facto couple if they have been together for at least three years (see below “Short-term relationships: When the Act applies”, and see also in this section “Exceptions to equal sharing of relationship property / De facto relationships of short duration”).
Short-term relationships: When the Act applies
Under the Property (Relationships) Act, a relationship of short duration is one that lasts for less than three years. In some circumstances, where the court considers it just, a longer relationship can also be considered to be “of short duration”.
Marriages and civil unions of short duration are covered by the Act, but special rules apply.
De facto relationships of short duration are usually not covered by the Act unless:
- there is a child of the relationship, or
- one party has made a substantial contribution to the de facto relationship (including non-financial contributions), and
- the court is satisfied that failure to make an order would result in serious injustice.
In circumstances where a relationship of short duration is covered by the Property (Relationships) Act, special rules apply to the division of the relationship property (see in this section “Exceptions to equal sharing of relationship property / Marriages and civil unions of short duration” and “De facto relationships of short duration”).
What if a couple lived together before their marriage or civil union?
In terms of working out the length of the relationship, a de facto relationship that immediately precedes a marriage is treated as if it were part of the overall length of the marriage relationship.
Similarly, if a married couple were in a civil union before they got married or the other way round, the length of the relationship for the purposes of the Property (Relationships) Act is the total of both.