The Act now applies to de facto heterosexual couples and same sex couples, as well as married couples and couples in Civil Unions. It also applies to relationships ended by the death of a spouse or partner.

The law made changes to relationship property law and maintenance law aimed at addressing the differences in economic position between spouses or partners that result from the division of functions during the relationship.

The Property (Relationships) Act 1976

This Act provides legal rules on how property should be divided when a marriage, civil union, or de facto relationship ends. These rules are based on some general principles:

men and women have equal status, and their equality should be maintained and enhanced ;
non-financial contributions, such as caring for children and running the home, are equal in value to financial contributions;
each spouse or partner has made an equal contribution to the relationship and therefore relationship property should be shared equally between them;
whether one spouse or partner may be more responsible than the other for the break-up of the relationship is not relevant to the division of the property although in exceptional circumstances the Court may take the spouses' or partners' conduct into account in deciding how the division of property will be carried out;
a just division of relationship property takes account of the economic advantages or disadvantages to the spouses or de facto partners arising from their marriage or de facto relationship or from the ending of their marriage, civil union, or de facto relationship;
questions arising about relationship property should be resolved as inexpensively, simply, and speedily as is consistent with justice.

Who is covered by the Act?

The Act applies to anyone who is married has a civil union or who lives in a de facto relationship. This includes same-sex couples.

What is the definition of a de facto relationship?

A de facto relationship is a relationship between two people (whether a woman and a man, or a woman and a woman, or a man and a man) who are both over 18 and who live together as a couple, but who are not married to one another.

In deciding whether two people live together as a couple, the Court will consider all the relevant circumstances, including:

How long the relationship has lasted;
The extent to which the couple share a home;
Whether they have a sexual relationship;
Their financial and property arrangements and interdependence;
Their ownership, use and acquisition of property;
Their degree of mutual commitment to a shared life;
Their care and support of children;
Who does the housework and other household duties;
The reputation and public aspects of the relationship (eg whether the partners are known to family and friends as "a couple").

These factors are only a guide. The presence or absence of any one of them will not necessarily determine whether there is a de facto relationship.

The Court decides how important any one given factor is in each particular case.

How long must you have lived together to be covered by the law?

In most cases, the Act only covers de facto couples who have lived together in a de facto relationship for at least three years.

If your relationship has lasted for less than three years, you may still be covered by the Act if there is a child, or if you have made a substantial contribution to the de facto relationship.

Married couples and civil union partnerships are covered by the Act from the date of their marriage. If a marriage or civil union has lasted less than three years different rules apply to the division of property.

What if we lived together before we married?

If a married couple or civil union partners lived together in a de facto relationship before they married or were civil unioned, then the period of the de facto relationship will be treated as if it were part of the marriage or civil union.

Does the Act apply to spouses or partners during their relationship or only after the relationship ends?

The Act can apply during relationships in certain circumstances. For instance, if one spouse or partner becomes bankrupt, or if one spouse or partner, who thinks the other is deliberately wasting the property, asks the Court to divide it.

If one spouse or partner owns land, the other spouse or partner can put a notice on the title claiming an interest in the land. This can be done at any time during the relationship, not just if there is disagreement about the property.

The Act permits both spouses or partners to make agreements during the marriage or civil union about the status, ownership and division of property.

Does the Act apply if my partner dies?

Yes. The Act deals with the division of property where one spouse or partner dies.

As a surviving spouse or de facto partner, you will have the choice of taking what you have been left under the deceased's will, or receiving a half-share of relationship property under the Act. You must make your choice no later than 6 months after the death of the other spouse or partner or at the latest 6 months after administration of the estate is granted.

Your choice must be in writing, and must include or be accompanied by a certificate signed by a lawyer. This certificate must state that the lawyer has explained to you exactly the consequences and implications of your choice.

Your choice must be lodged with the administrator of the estate or in the registry of the High Court if administration of that estate has not been granted in New Zealand.

The choice cannot be revoked.

If you do not make a choice, or if you do not follow the above requirements, then you will be treated as having chosen to inherit property as provided for under the deceased's will or the rules of intestacy (intestate).

The property division rules that apply on death are largely the same as those that apply on separation.

Your claim as surviving partner for a share of relationship property takes precedence over claims under inheritance law. This recognises that one spouse or partner should not be able to dispose of the other spouse or partner's share of relationship property in their will.

These rules apply to wills that existed prior to the law change.

Couples can agree that these rules will not apply to them on death by contracting out of the new provisions.

Can I continue to own property separately during the relationship?

Yes. Both spouses or partners can continue to own property separately and deal with it as they wish.

Is all property shared if the relationship breaks up?

No. Under the Act, there are two kinds of property - relationship property and separate property.

What is relationship property?

Relationship property includes:

the family home;
family chattels, such as household furniture and the family car (it does not include heirlooms or taonga)
any property acquired when contemplating the relationship;
debts;
insurance on the spouses or partners' lives or on the family property;
any part of a superannuation scheme or policy attributable to the marriage or relationship;
gifts or inheritances which the owning partner allows to become mixed with other relationship property;
property owned jointly or in equal shares by the spouses or partners;
generally, property acquired by either spouse or partner during the relationship;
property such as salary or wages which comes in during the relationship;
property acquired by one spouse or partner before the marriage in contemplation of the relationship and intended for the common use or benefit of both spouses or partners;
property which both spouses or partners agree is relationship property;
increases in the value of relationship property, income from it, or the proceeds from sale of it.

All or some of a spouse or partner's separate property may become relationship property if:

that spouse or partner puts the separate property into relationship property, for example by using separate property to buy or upgrade relationship property;
the other spouse or partner's actions have helped to increase the value or income from the separate property;
relationship property has been used to bring about growth in or income from the separate property;
the separate property was obtained while the spouses or partners were living apart and the Court thinks it is fair to treat it as relationship property.

What is separate property?

Separate property will stay separate if it is kept separate during the marriage or civil union.

Usually, separate property is not shared. It remains the property of the spouse or partner who owns it. If you want to protect this property, you should make an agreement with your spouse or partner.

Separate property is anything that is not relationship property. Most property which a spouse or partner owns before a relationship will be separate property.

All property acquired out of separate property and proceeds from the sale of any separate property are also separate property.

Any increase in the value of separate property remains separate property.

The increase in the value of separate property becomes relationship property if the increase is caused by the actions of the other spouse or partner or by the use of relationship property.

Gifts and inherited property which a spouse or partner receives during a relationship will be separate property, unless they become mixed with relationship property.

The family home (even if it is in the name of one spouse or partner) and family chattels are never separate property.

Do I have to go to Court over the division of property?

No. Spouses or partners can agree between themselves on how to share the property. These agreements can be made at any stage of the relationship and must be in writing.

Each spouse or partner must have independent legal advice.

It is only when spouses or partners can't agree that the Court becomes involved.

How will relationship property be shared?

a) Relationships of more than three years

Under the Act, if the relationship has lasted more than three years, all relationship property will be divided equally unless the Court considers there are extraordinary circumstances that will make equal sharing repugnant to justice.

Property that is being shared is normally valued at the date of the Court hearing. However, the Court has the power to have property valued at a different date if it thinks this is appropriate.

b) Marriages or civil unions of less than three years

If a marriage or civil union has lasted less than three years, the division of the family home and chattels will be shared according to the contributions of each spouse to the marriage or civil union if:

they were owned by one spouse before the marriage or civil union began;
they were received by one spouse as a gift or under a will during the marriage or civil union;
one spouse made a disproportionately greater contribution to the marriage or civil union.

For other relationship property (including businesses), the Court starts with the general principle that the husband and wife have contributed equally, and that they should share in that property equally.

If the Court considers that one spouse has made a clearly greater contribution to the marriage or civil union, then the relationship property will be divided according to the contributions of each spouse.

c) De facto relationships of less than three years

Most de facto couples who have lived together in a de facto relationship for less than three years will not be covered by the Act. However, if your relationship has lasted for less than three years, you may still be covered by the Act if there is a child, or if you have made a substantial contribution to the de facto relationship.

If the Court is satisfied that failure to make an order would result in serious injustice, it can make an order requiring that relationship property be shared according to the contribution each partner made to the relationship.

Are there any exceptions to equal sharing of relationship property?

In general, all relationship property will be divided equally unless the Court considers there are extraordinary circumstances that will make equal sharing repugnant to justice.

The court has authority to make orders to address economic disparities between the spouses or partners when the marriage, civil union, or relationship ends.

If the income and living standards of one spouse or partner are likely to be significantly higher after the relationship ends than those of the other spouse or partner, the Court can award a lump-sum payment from that spouse or partner's share of the relationship property to the other spouse or partner.

Where one spouse or partner has spent time and effort building up the value of his or her separate property during the relationship, the Court can order that the other spouse or partner be compensated for the increase in value of that separate property.

The Court can only make such an award if the incomes and living standards of the spouses or partners are likely to be significantly different because of the division of functions during the marriage civil union or relationship.

In deciding whether to make an order, the Court can consider the likely earning capacity of each spouse or partner and their responsibilities for the daily care of their minor or dependent children, and any other relevant circumstances.

The court has flexibility to award maintenance to be paid to a spouse or partner. This is to help deal with the economic consequences of a relationship ending.

Changes to the Family Proceedings Act 1980 allow the Court:

to consider differences between the spouses' or partners' future living standards and earning capacity because of the division of functions during the marriage/ civil union/ relationship;
to consider the family's previous living standards in assessing a spouse or partner's reasonable needs;
remove the previous weighting in favour of a second family in assessing the amount of maintenance to be paid (although support of other people can still be considered);
recognise that in some cases a person will not be able to become self-supporting, so longer-term maintenance may be appropriate.

Will homes and businesses have to be sold up and their proceeds divided?

No, the Court can delay the actual division of any property if immediate division would be inappropriate.

What about debts?

Personal debts are the responsibility of the spouse or partner who incurred them and non-personal debts are the responsibility of both spouses or partners.

What is left after joint debts are paid is the relationship property that is shared between spouses or partners.

A spouse or partner cannot use all the relationship property to pay off personal debts. The other spouse or partner has a protected interest of up to a specified amount of the family home.

Can we make alternative agreements?

Yes. If you and your spouse or partner do not want the Act to apply to your relationship, you can enter into an agreement to contract out of the provisions of the Act.

You can make your own agreement about how you will own the property, how you will manage it during your relationship, and how you will divide it if your relationship breaks up.

The agreement must be in writing and signed by both parties;
Each party must have independent legal advice before signing the agreement;
The signature of each party must be witnessed by a lawyer, who must certify that he or she has explained to that party the effect and implications of the agreement.

The Court can set aside an agreement, but only when applying the agreement would cause serious injustice.

What about the rights of the children?

The Act says that the Court shall "have regard to the interests of any minor or dependent children of the marriage".

The court can:

Settle relationship property for the children's benefit;
Postpone the transfer of any share of relationship property where immediate transfer would cause undue hardship for the spouse/partner who has the daily care of the children;
Make an order granting either spouse/partner possession or use of all or any furniture to equip another household, having particular regard to the needs of the children who will be living there

Legal Aid

If you are eligible, legal aid is available for all Family Court matters except dissolution (divorce). Further information about legal aid eligibility or talk to your lawyer or your local Community Law Centre or Citizens Advice Bureau.

Further Information

This web page can only answer some questions about the effects of the Property (Relationships) Act. You should discuss your situation with a lawyer or someone at your local Citizens Advice Bureau or Community Law Centre.

Property (Relationships) Model Form of Agreement Regulations 2001 (PDF 18KB)