There is a general presumption that a couple’s property will be divided equally between them. There are exceptions to this rule however when the family home is a homestead, when extraordinary circumstances make equal sharing “repugnant to justice” and if the relationship is one of short duration.
In particular, there are different rules about how property is to be divided where a relationship has lasted less than three years
Couples who’ve been together three years
Married, civil union, and de facto couples who’ve been together for at least three years are covered by the equal-sharing rules in the Act. This means the family home, car, furniture, and appliances will usually be shared equally between them.
Short-term marriages and civil unions
Married and civil union couples who’ve been together less than three years are covered by the Act. But in some cases, the family home, car, and so on may be divided according to each person’s contributions to the relationship (including non-financial contributions), rather than being shared equally.
Short-term de Facto relationships are usually not covered
De facto couples who’ve been together for less than three years usually aren’t covered by the Act at all. This means that the ordinary rules of property ownership will decide what each person is entitled to. But there are some exceptions to this.
The act which deals with how the property of married couples, civil union partners and de Facto couples is divided when a relationship ends is the Property (Relationships) Act 1976
The purpose of the Act is to recognise the equal contributions of both partners to their relationship and to provide for a just division of property when their relationship ends, taking into account the interests of their children.
This Act covers a relationship ending because of a break-up, but it can also cover a relationship ending because of the death of a spouse or partner.
ss 21A, 21F of the Property (Relationships) Act 1976, explains Making your own agreement
In the first instance, it is up to the couple to decide how they will divide their relationship property. If they can agree on how they will divide the relationship property, then they can do this without having to follow the rules of the Property (Relationships) Act and without having to go to court.
However, any agreement must be in writing and must meet various legal requirements, including that the parties each get independent legal advice (see “Can a couple contact out of the Property (Relationships) Act?” below in this section).
Men and women have equal status, and their equality should be maintained and enhanced.
All forms of contribution to the relationship are treated as equal
This means non-financial contributions, such as caring for children, are valued equally with financial contributions, such as working for a wage
A just division of relationship property needs to take into account any economic advantages or disadvantages to a spouse or partner as a result of the relationship or as a result of the ending of the relationship. Relationship property issues should be resolved as inexpensively, simply and quickly as is consistent with justice.
Dividing your property, when you split up!
In certain situations, the Family Court can depart from the equal-sharing rules for relationship property – for instance:
- if the relationship is one of short duration.
- if there is economic disparity at the end of a relationship
- if each party owned a home at the date the relationship began
- if the value of one spouse’s or partner’s separate property has been
- increased, sustained or reduced by the other spouse or partner
- if the relationship is of short duration.
(These exceptions are discussed further below.)
If equal sharing would be very unfair (“repugnant to justice”)
Property (Relationships) Act 1976, s 13
The court can order an uneven division of relationship property where there are extraordinary circumstances that make equal sharing “repugnant to justice”. This means that equal division would be totally unfair to one of the spouses or partners. In this case, each person’s share is decided according to their contributions to the relationship (including non-financial contributions). The test is very stringent, and is only rarely met. The circumstances need to be exceptional to meet this test.
If one partner is economically disadvantaged at the end of the relationship
Property (Relationships) Act 1976, ss 15, 15A
An uneven property division may be ordered when there is economic “disparity” between the spouses or partners at the end of a relationship, but only if the disparity is due to the “division of functions” within the relationship while the parties were living together.
- one partner stays at home and looks after the children while the other works, or
- one partner supports the other while they are studying and gaining a qualification.
If one partner has been economically disadvantaged by the “division of functions” within the relationship, the court can decide to make an uneven division of the relationship property by awarding a lump sum to one spouse or partner out of the other spouse’s or partner’s relationship property.
If the spouse or partner who is in the better economic position has also been able to increase the value of their separate property during the relationship (due to the division of functions within the relationship), the court can provide compensation to the other spouse or partner out of either relationship property or separate property.
In deciding about whether to order an uneven division of relationship property in the above situations, the court can consider:
- one partner supports the other while they are studying and gaining a qualification.
- one partner supports the other while they are studying and gaining a qualification.
- any other relevant circumstances.
Note: Economic disparity means that the income and living standards of one spouse or partner are likely to be significantly higher than those of the other spouse or partner.
“Division of functions” within the relationship refers to the way in which people organise their lives. For example:
If each partner owned a home when the relationship began
Property (Relationships) Act 1976, s 16
Sometimes, at the time when a relationship begins, both spouses or partners might own a home capable of becoming the family home. But, at the time when the relationship property is to be divided, the home (or the proceeds of the sale of the home) of only one spouse or partner is included in the relationship property. In these cases, the court may adjust the division of relationship property to compensate for this. The court may also make an adjustment if one home was sold before the relationship began because the two parties were then planning to set up house together.
If the value of separate property was affected by the other partner
Property (Relationships) Act 1976, ss 9A, 17, 17A
Where the value of one spouse’s or partner’s separate property is increased by:
- the direct or indirect actions of the other spouse or partner, or
- the use of relationship property,
then the increase in the value of the separate property is considered to be relationship property and is divided according to the contributions of each spouse or partner to the increase.
Where the separate property of one spouse or partner has been sustained by:
- the direct or indirect actions of the other spouse or partner, or
- the use of relationship property,
the court may increase the share of the other spouse or partner in the relationship property or order that they be paid compensation.
Where the separate property of one spouse or partner has been materially reduced in value by the deliberate action or inaction of the other spouse or partner, the court may reduce the share of the other spouse or partner in the relationship property.
Marriages and civil unions of short duration
Property (Relationships) Act 1976, ss 2E, 14, 14AA
For marriages and civil unions that last less than three years, the general principle is that equal sharing won’t apply to the family home and chattels if:
- they were owned wholly or substantially by one party at the date of the marriage or civil union, or
- they were acquired after the date of the marriage by succession, survivorship, trust or gift by a third person, or
- one party’s contribution to the marriage or civil union (including non-financial contributions) was disproportionately greater than the other.
In these cases, the family home and chattels will be divided according to each spouse or partner’s contribution to the marriage or civil union.
For other relationship property, equal sharing applies unless one spouse or partner has made a clearly greater contribution to the marriage or civil union. In these cases, the relationship property will be divided according to each spouse or partner’s contribution to the marriage or civil union.
De Facto relationships of short duration
Property (Relationships) Act 1976, ss 2E, 14A
If a de facto relationship lasts for less than three years, the Property (Relationships) Act will usually not apply. Instead, the general rule is that the parties each take out what they brought into the relationship and retain the property that is in their own name. If one partner wishes to claim a share of the other’s property, this can only be done by applying to the High Court and arguing that there is a “constructive trust” in place.
However, the Property (Relationships) Act may still be used for a de facto relationship of short duration if:
- there is a child of the relationship, or
- the applicant has made a substantial contribution to the de facto relationship (including non-financial contributions),and if
- the court is satisfied that failure to make the order for the division of relationship property would result in serious injustice.
If this is the case, the relationship property will be divided according to the contribution of each partner to the de facto relationship.
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Relationship Property
We draft and advise on Contracting Out Agreements if you are considering entering a de facto relationship, getting married, entering a civil union or want to protect your assets. In the event of separation or divorce, we help with Separation and Relationship Property Agreements, spousal and child maintenance and court proceedings.
about the author
Amy Chesnutt
PARTNER
Amy has extensive litigation experience, representing clients in the Family, District and High Courts District of New Zealand and the Magistrates Court, District of Queensland, Federal Circuit Court of Australia and Family Court of Australia.
About the author
Mihikeita Tibble
LAW CLERK
Mihikeita is a third-year law student. Before studying law, Mihikeita was a Customs Officer for eight years. It is here where she gained many skills, such as report writing, risk management, work ethic, communication, and conflict resolution skills.