In fact, we're married... and it works

By Chris Barton

Much heat has been generated in the debate over civil unions but, as CHRIS BARTON reports, the number of New Zealand couples opting for the de facto approach to a life together is growing all the time


A couple who have been living together for a few years stand on a deserted West Coast beach watching the sunset.

"I think we should get married," says the man.

"I think we already are," says the woman.

"Let's make it official."

"How?"

"We just say it."

"What?"

"We're married."

"We're married, we're married, we're married," they yell to the sun, the sand and the surf and then fall about laughing.

It's a true story told to me a long time ago. I was about to embark on the real thing - marriage, church bells ringing, the whole shebang. I knew this couple had a great relationship, so why weren't they married?

Their answer gave me my first understanding of the essential difference between a de facto bond and marriage - the manner of the commitment.

Marriage requires a public affirmation and a ceremony - whether secular or religious - to solemnise and register the union. For de facto couples, commitment just happens.

Years later, after my marriage ended, another relationship began. Both of us had messed up our first marriage, so there was no way we would contemplate it again.

But as our relationship progressed I struggled mightily with the notion of commitment. Shouldn't we mark in some way, or with some sort of ritual, the fact that we were a couple?

"Nah," said my partner. "If it ain't broke, don't fix it."

It's an adage we've lived by ever since.

But we did see a lawyer because 20-something years ago, de facto couples didn't have the automatic legal protections of married couples.

So we sorted out ownership of our property together by having both names "tenants in common" on the title. We also made wills, so that it was clear who, including the children, got what if either of us died. And that was that.

We've never really suffered from being de facto, except for a slight problem at the beginning when none of the banks would give us a mortgage. These days the banks fall over themselves rushing to give us more mortgages than we need.

Sometimes I introduce my partner as my wife - usually for convenience's sake. But that's quite okay because we are, in fact (de facto), husband and wife.

Gray Cameron, the lawyer who sorted out our legal requirements 20 years ago, says the big change since then is that de facto couples come to see him now more to contract out, rather than contract in to their relationship.

"I have a constant flow of people who are contemplating entering into a de facto relationship and saying, 'We have just become aware of what the law will do - we don't like it because of our particular circumstances and therefore we want to contract out'."

That's largely because the Property Relations Bill, which came into effect early in 2002, gives de facto couples - whether "a man and a woman, a man and a man or a woman and a woman" - the same property rights as married couples.

What would have once been separate property automatically becomes relationship property after three years of living together. Other laws, such as the Family Protection Act, also protect the rights of de facto partners and their children.

If the Relationships (Statutory References) Bill, which goes hand in hand with the Civil Union Bill, becomes law, the legal distinction between married and de facto relationships will be almost non-existent.

"The bill gives the same legal rights to married persons, persons in a same or opposite sex de facto relationships and civil unions," says University of Auckland emeritus professor of law Dick Webb in Butterworths Family Law Journal.

Most attention today is focused on the Civil Union Bill and how formalised gay unions threaten the status of marriage. But the more accurate target should be the rise of heterosexual de facto couples.

The conservative Maxim Institute lobby group proclaims: "Marriage has had a privileged status because it provides what other relationships do not."

But the growth in numbers suggests, and our own experience tells me, de facto relationships do provide very well.

In the 2001 census, 300,846 people were in de facto relationships - nearly 19 per cent of all people in relationships in New Zealand and up 4 per cent on the 1996 census.

In 1991 there were 47,838 children under 15 with de facto parents and 26,880 de facto families. By 2001 the numbers had doubled to 95,800 and 52,122 respectively.

"In the 70s and early 80s, cohabitation was like a trial marriage, but now having children is becoming a norm in cohabitation," says Dharma Arunachalam a senior lecturer in population studies at the University of Waikato.

Gay couples are 1 per cent of the de facto number - 1836 male couples and 1878 female couples in 2001.

But the number is probably grossly under-reported, evidenced in part by the 35,748 "partnered not further defined" couples in 2001 - more than three times the number in 1996. It seems even the couples involved are confused about their status.

"It's a combination of economic changes and social changes that have made cohabitation much more prevalent today," says Arunachalam. "I wouldn't be surprised if it's going to be the dominant form of institution that is going to replace marriage - maybe in 10 or 15 years."

The rise in de facto relationships suggests also the social stigma of "living in sin" and having children "out of wedlock" is having less effect.

The trend is particularly marked among younger New Zealanders. Those aged 20 to 24 living in de facto relationships (45,273) outnumber those legally married (15,390).

Arunachalam says de facto couples are likely to make up 22 per cent of the relationship population by 2005 and 26 per cent by 2009. By 2005 more people aged 25 to 29 will be in de facto relationships than marriage.

By 2009 those in the 30 to 34 age group in de facto relationships are expected to swell to over 45 per cent.

Another sign of cohabitation's ascendancy is found in changes to immigration regulations last year. Before the changes, applicants were able to get married and apply for residency straight away, but de facto couples had to show they had been in a relationship for two years.

"The criticism was that boy meets girl on Saturday, gets married on Sunday, and applies for residency on Monday, says immigration lawyer Richard Martin.

"Now there's no such thing as marriage and no such thing as de facto - it's all partnership and you have to be living in a genuine stable relationship for one year."

Martin says the onus is now on the couple - married, de facto or same sex - to show they've been living together without other partners.

Cameron says the main legal problem with de facto couples is defining the starting point of the relationship because, unlike a married couple, they have no registered ceremony.

He says that is usually overcome by using the signing of a tenancy agreement or the buying of a home together as a starting point.

Cameron points out that unlike gay couples, heterosexual de facto couples always have the option of marriage. Civil unions simply extended the choice to same-sex relationships.

Webb says the bill gives "a different concept of commitment to those in legal position to choose to avail themselves of it.

"It is not a matter of social engineering or of political correctness. It is a matter of justice. Nobody is being compelled by the bill to do anything against their principles."

The distinction between the publicly affirmed and recorded commitment of marriage or civil unions, and the more casual commitment over time of de facto relationships is that marriage is a little more restrictive.

"With de facto, one party moves out and it's over," says Cameron. In marriage or civil unions, couples have to wait two years for the dissolution of their relationships before they can get married again. Other restrictions cover the age of consent and who can marry whom.

Cameron says another problem with de facto couples is they are mostly slow to sort out wills and other legal issues - although he agrees married couples aren't much better.

"Most people go into a de facto relationship and don't know whether it is going to work or not, so they give it a bit of time and see how things go.

"Many of them have been married and are once bitten, twice shy, so they're going into it very, very carefully and they stay in the tentative situation and then they settle into a common pattern and sorting out the legal issues just gets shelved and they never get round to it."

But if the Relationships (Statutory References) Bill passes - automatically giving more legal protection to de facto couples - being remiss about relationship contracts won't matter.

Whether de facto relationships will overtake marriages and undermine the institution remains to be seen.

But it is worth noting that de facto is "in fact" marriage by another name.

As for the couple who got "married" on the beach. Last I heard they and their family are still going strong.

Herald Feature: Civil Unions

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