Jenell Gib­son

Stu­dent, Hugh Wood­ing Law School

A com­mon fea­ture of our di­verse cul­ture is what is known in law as "co­hab­i­ta­tion­al re­la­tion­ships". That is where two peo­ple have been liv­ing to­geth­er as man and wife with­out hav­ing gone through an of­fi­cial cer­e­mo­ny of mar­riage.

The Co­hab­i­ta­tion­al Re­la­tion­ships Act was passed in 1998 and it recog­nised the ex­is­tence of such in­for­mal unions. It grant­ed to these peo­ple many of the same rights in re­la­tion to prop­er­ty and main­te­nance which a wife or hus­band in a for­mal mar­riage or­di­nar­i­ly pos­sess.

Qual­i­fy­ing as aco­hab­i­tant

To es­tab­lish a co­hab­i­ta­tion­al re­la­tion­ship, the par­ties must be of the op­po­site sex and must not be mar­ried to each oth­er, but must have lived or con­tin­ue to live to­geth­er as hus­band and wife. They must ei­ther:

(1) Have co­hab­it­ed for no less than five years;

(2) Have a child from the re­la­tion­ship; or

(3) The per­son ap­ply­ing ("the ap­pli­cant") made sub­stan­tial con­tri­bu­tions to the home, whether fi­nan­cial or non-fi­nan­cial.

On­ly one of these con­di­tions needs to be sat­is­fied to qual­i­fy.

Af­ter the break­down of the re­la­tion­ship, the ap­pli­ca­tion must be made with­in two years. How­ev­er, this pe­ri­od may be ex­tend­ed if it caus­es hard­ship.

Prop­er­ty set­tle­ment and main­te­nance

The court may or­der that one par­ty be giv­en a share in the prop­er­ty owned if the ap­pli­cant has made sub­stan­tial con­tri­bu­tions to the home.The court al­so has the pow­er to or­der that main­te­nance be paid to the ap­pli­cant if he/she can­not sup­port him/her­self prop­er­ly as a re­sult of hav­ing to care for the child.

Main­te­nance may al­so be grant­ed to al­low the ap­pli­cant to in­crease their in­come by pur­su­ing a train­ing pro­gramme or ed­u­ca­tion­al course.

The courts will con­sid­er a va­ri­ety of fac­tors in mak­ing the or­der, in­clud­ing: the par­ties' age, health, in­come and re­sources; the du­ra­tion of the re­la­tion­ship and whether the ap­pli­cant is in a new co­hab­i­ta­tion­al re­la­tion­ship or has since mar­ried.

The courts have al­so laid down the fol­low­ing prin­ci­ples:

�2 'Liv­ing to­geth­er' does not nec­es­sar­i­ly mean liv­ing un­der the same roof, how­ev­er, the oth­er el­e­ments of a co­hab­i­ta­tion­al re­la­tion­ship must ex­ist;

�2 The five-year pe­ri­od must be con­tin­u­ous, how­ev­er, small breaks may be dis­count­ed; and

�2 There is no re­quire­ment for both par­ties to be sin­gle; a co­hab­i­ta­tion­al re­la­tion­ship may ex­ist de­spite one or both par­ties be­ing legal­ly mar­ried.

An Al­ter­na­tive Route

Where the per­son can­not qual­i­fy as a co­hab­i­tant un­der the act be­cause, for ex­am­ple, they have on­ly co­hab­it­ed for four years, this per­son may still be able to ob­tain a share in the prop­er­ty if he/ she can es­tab­lish a "com­mon in­ten­tion con­struc­tive trust".They must show that there was an in­ten­tion that they would have a ben­e­fi­cial share of the prop­er­ty.

This is done by show­ing ev­i­dence of a di­rect in­ten­tion (ex­pressed words used by the oth­er par­ty that he/she would have a share of the prop­er­ty) or an in­di­rect in­ten­tion (fi­nan­cial con­tri­bu­tions made which al­lowed the oth­er to ac­quire the prop­er­ty eg mort­gage pay­ments).The per­son must al­so show that they act­ed on that in­ten­tion to their detri­ment.

It is im­por­tant for peo­ple to recog­nise that on the break­down of such re­la­tion­ships the law does in fact pro­vide as­sis­tance.Pro­vid­ed that the re­quire­ments are sat­is­fied, such par­ties may be grant­ed rights over prop­er­ty and/or main­te­nance where this is fair.

This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult a le­gal ad­vis­er.