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If you are already living together as a couple or you are planning on moving in together, you need to get sound advice from an experienced lawyer specializing in relationship property matters. Right from the outset you need to understand the implications “living together” may have for your separate property rights.
Section 2D Property (Relationships) Act 1976 is a great starting place to begin with, as it defines what the meaning of a “de facto relationship” is.
A recent Court of Appeal case Sutton v Bell [2021] NZCA 645 confirmed that even if a couple are “in contemplation” of a de facto relationship, the Court has the ability to set aside a disposition of property (eg to a trust) when the person knew it would defeat a partner’s claim or rights. In this case about 8 months after the partner moved in as a flatmate, a property was transferred into a family trust for the purpose of asset protection. Even though the couple’s relationship didn’t yet qualify as a “de facto relationship”, nevertheless the Court set aside the transfer of property to the trust because they were “in contemplation” of a de facto relationship.
If you mutually contemplate living together “as a couple” then you are presumed to be “in contemplation” of a de facto relationship. Whilst moving in together is one of the many indicators referred to in s2D PRA, the Court will consider many other factors as occurred in Sutton v Bell. In contrast, flatmates who are in a sexual relationship (“friends with benefits”) may not be living together “as a couple.” In this case the Court of Appeal found the couple were not “in a de facto relationship” until later on in their relationship, when there were other indicators of a mutual commitment to a shared future (ie when they holidayed together and conceived their first child).
If these circumstances have similarity to your situation or create any concerns for you, rather than getting caught out by not obtaining legal advice, contact our experienced Ward Adams Bryan-Lamb team as you may well require a friendly Property (Relationships) Agreement or “pre nuptial” agreement.