Ministry of Justice: Publications: Misc: 1998: Comparison between Matrimonial Property Act 1976 regime and De Facto Relationships (Property) Bill regime

Comparison between Matrimonial Property Act 1976 regime and De Facto Relationships (Property) Bill regime

This table outlines the main features of the Matrimonial Property Act (as amended by the Amendment Bill) and, by way of comparison, the proposed statutory property regime for de facto relationships.

	Matrimonial Property Act	De Facto Property Regime
Definition of property to be shared	Matrimonial property includes the family home and chattels, property owned jointly by the spouses and property acquired after marriage other than by inheritance or gift.	Relationship property includes the same kinds of property that would be matrimonial property if the partners were married.
Main rules about sharing	General rule is that all matrimonial property will be split 50/50.	50/50 split rule only applies to the family home and chattels. The rest of the relationship property is divided in accordance with contributions to the relationship
Family home and chattels	Equal sharing of the family home and chattels can be set aside if there are extraordinary circumstances which make equal sharing repugnant to justice. The "repugnant to justice" test is not easy to satisfy. Where equal sharing is displaced, division is on the basis of contribution to the marriage partnership.	Equal sharing of family home and chattels can be set aside if it would cause serious injustice. The "serious injustice" test is easier to satisfy than "repugnant to justice".
Other matrimonial /relationship property	Equal sharing of other matrimonial property can be set aside if the contribution of one spouse has been clearly greater than the other. Where equal sharing is displaced, division is on the basis of contribution to the marriage partnership.	Equal sharing does not apply to all other relationship property which is divided in accordance with contributions to the relationship.
When property rights take effect	Couples have rights under the Matrimonial Property Act 1976 from the time of marriage except that the sharing rules are modified in some cases for marriages of less than 3 years’ duration.	Couples have no rights under the de facto regime until they have lived in a de facto relationship for 3 years or more, except in very limited circumstances (see below).
Relationships of short duration	Where the couple has been married for less than 3 years, the equal sharing of the family home and chattels can be set aside in certain circumstances (eg where the family home was owned by one spouse at the date of the marriage). In that case, the home and chattels are divided on the basis of contribution.	For de facto relationships of less than 3 years’ duration, if the couple have a child or if one of the partners has made a substantial contribution to the relationship, the Court has a discretion to divide the relationship property on the basis of contribution if not doing so would result in serious injustice.
Contracting out	The spouses can contract out of the Matrimonial Property Act 1976.	The partners can contract out of the de facto property regime.
Application	The Act applies on the breakdown of a marriage or where one spouse dies.	The regime applies where a de facto relationship breaks down or one partner dies.

Note that the Matrimonial Property Amendment Bill does not alter the basic division rules in the 1976 Act, although it does extend those rules to apply on the death of a spouse.