Finding Certainty in Determining whether a 'De Facto Relationship' Exists: An Impossible Task?

AuthorZhixiong Liao
PositionLecturer, Te Piringa - Faculty of Law, University of Waikato, New Zealand
Z  L*
Section 2D(1) of the Property (Relationships) Act 1976 denes a “de facto
relationship” as “a relationship between 2 persons … who live together as a couple”.
Although the Act does not dene “ living together as a couple”, section 2D(2) &
(3) provides that “[i]n determining whether 2 persons live together as a couple,
all the circumstances of the relationship are to be taken into account, including
… [a list of 9 matters]” and that none of these nine matters is “to be regarded
necessary” and “a court is entitled to have regard to such matters, and to attach
such weight to any matter, as may seem appropriate … in the circumstances of
the case”. e seemingly unfettered discretion of the Court, delegated by section
2D, may be helpful in pursuing a fair and just outcome for each case, but it also
raises a great concern as to uncertainty. is paper examines some relevant cases
and argues that “mutual commitment to a shared life” should be at the core of
section 2D and be the most important test, and by which cert ainty can be found to
a large extent, in determining whether a de facto relationship exists. Accordingly,
this paper recommends that amendments should be made to the legislation to aid
the interpretation and application of section 2D.
I. I 
e purpose of the Property (Relationships) Act 1976 is to recognise the
equal contribution, including but not limited to nancial contribution, of
both spouses to a marriage pa rtnership, of civil union partners to the civil
union, and of de facto partners to the de facto relationship; and to provide
for a just division of relationship property when their relationship ends.1
erefore, determining whether there was a marriage, civil union or de facto
partnership between the parties is a prerequisite to achieving these goa ls.
Determining whether there was a ma rriage or a civil union relationship is a
relatively easy task bec ause the certicate and/or ceremony clearly indicate
that the parties voluntarily contracted into the relationship. Where there is
a lack of such a certicate or ceremony, establishing whether there was a
1 Property (Rel ationships) Act 1976, s 1M.
* Le cturer, Te Piringa - Faculty of Law, University of Waik ato, New Zealand.

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