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When the Boarder is something more…

October 4, 2010

Readers of the NZ Herald may have noticed a story that ran a few weeks ago about a Morrinsville woman who may end up losing half her home to a man she argued was her boarder. The Family Court didn’t agree with her and decided he was her de facto partner of more than three years and hence, was entitled to half the property. The case looks headed for appeal but provides a good illustration of the unintended consequences of one’s living arrangements. 

A number of people may not realise the law would classify them as being in a de facto relationship. Once a de facto relationship is found to exist, the parties’ property rights upon separation or death are likely to be decided under the Property (Relationships) Act 1976. How their property is to be divided as a result may not be an outcome either party intended or wanted.

I have met several couples who thought that they were safe from property claims by the other because they had set up a “rental” or “boarding” arrangement between them while they shared a home. All were aghast to learn from me that the Family Court would likely see their relationship as a de facto one and that the home they share could be divided in half.

Whether two people are married is generally very simply determined – they either have a marriage certificate (and are married) or they don’t (and are not).Things aren’t quite so simple for deciding if two people are in a de facto relationship. There is no simple, definitive test – no “he’s moved his toothbrush in so we are in a de facto relationship” test. A number of factors will be relevant when deciding whether a de facto relationship exists. Those factors are:

  • the duration of the alleged relationship;
  • nature and extent of common residence;
  • whether or not a sexual relationship exists;
  • degree of financial dependence or interdependence and any arrangements for financial support between the parties;
  • ownership, use and acquisition of property;
  • degree of mutual commitment to a shared life;
  • care and support of children;
  • performance of household duties;
  • reputation and public aspects of the relationship (eg how did others regard your relationship? Did they see you as “a couple” or as “landlord and lodger”).

No one factor decides the existence of a de facto relationship. Not all the factors need to be present for your relationship to qualify as a de facto relationship. Readers may be surprised to learn they may be found to be in a de facto relationship with someone they do not share a home with! While living together in a shared home will commonly exist in de facto relationships, it is not a prerequisite. There have been cases where the Court has found a de facto relationship existed where the parties did not live together in a common residence but where other factors in the list above were present.

The lesson from such cases is to ensure you get legal advice if you think you are in a situation that may be a de facto relationship or may be confused as one. A family lawyer will be able to set out options for you to ensure you don’t end up like the lady in Morrinsville.

If you want  help with a family law issue, go to www.familylawresults.co.nz.

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