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  5. When should the rules for short-term relationships apply to de facto relationships?

When should the rules for short-term relationships apply to de facto relationships?

The Property (Relationships) Act 1976 has special rules about how a couple should divide their relationship property if the relationship has lasted a short time. However, the rules only apply to de facto relationships if two extra conditions are met, otherwise the rules of division in the PRA do not apply at all.

First condition: 

(a) there is a child of the de facto relationship; or

(b) a partner who wants the Act to apply has made substantial contributions to the relationship.

Second condition: if the partners’ relationship property is not divided under the Property (Relationships) Act 1976 there would be serious injustice.

There are three main problems with these extra conditions.

First, the law treats people in de facto relationships differently to people in marriages and civil unions.

Normally the law does not treat people differently because of their relationship or family status. If people are treated differently, it can be unlawful discrimination and an infringement of their human rights. But that does not mean the law must treat people the same all the time. Sometimes, the law can make distinctions based on a person’s relationship status if the different treatment is reasonable and can be justified.

The Property (Relationships) Act 1976 ought to apply the same rules to relationships that are substantively the same. But if a short de facto relationship is different to a short marriage or civil union, the extra conditions for de facto relationships might be reasonable and justified.

Second, the test is difficult to apply because it is unclear. The words “substantial contribution” and “serious injustice” are open to interpretation.

Third, the test sets a high bar for relationships with children because they must meet the additional condition of serious injustice before the division rules apply.

We want to know when you think the special rules of property division should apply to de facto relationships that only lasted a short time. What factors are relevant for determining whether a short de facto relationship should come under special division rules?

What do you think?

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