You're in love, the sex is great, it's time to move in together. What could possibly go wrong? Jane Phare talks to experts about what to watch for, on both a practical and personal level, when a relationship gets serious.
Oh, that first flush of love, you've found your "soulmate", nothing can ever come between you. Let's move in together, keep our toothbrushes in the same bathroom, share our dreams, save for a house.
But wait, say family lawyers, counsellors and those who have been through relationship break-ups. Stop, think. This is the person with whom you will share a home, share secrets, money (and debt), a person you will trust, a person you think you know everything about. But do you?
Before tucking your jarmies permanently under his or her pillow, take a deep breath and think about having "the conversation". That's the one where you (both) get to ask awkward questions. Tough when cupid keeps beckoning seductively, but it could save a heap of heartache later, experts say.
The ideal time is before you move in together. Those questions get tougher to ask as time goes by. But it's never too late. Those already cohabiting or married should still take note.
Living together
That magic three years of togetherness will roll around fast enough and if things go wrong, be aware that everything will become joint property. That means assets will be split 50/50 – the house, furniture, appliances, cars, investments, KiwiSaver, artwork and debts. Even your labradoodle and pet-rescue kitten will be considered relationship property.
Candice Murphy, managing partner at Simpson Western Lawyers, says she's seen many disputes over family pets when couples separate.
The Law Commission, in its 2019 review of the Property (Relationships) Act 1976, has acknowledged that in many cases the current law is not fair, particularly if one partner owns a property before the relationship begins. It has recommended changes but, for now, the law stands. So again, it's best to pause and plan before the new love interest moves in.
Even if you're moving into rental accommodation together, the legal tests relating to chattels, pets, cars and the like still apply, Murphy says. And if the relationship breaks down and one partner moves out, whose name is on the lease and who's going to pay the rent?
The prenup
If one or both partners already owns property and wants to keep it separate, consider ring-fencing it with a contracting-out agreement (a prenup). Once you're in a relationship it is too late to transfer property into a trust, and if you've lived together for three years it's usually more difficult, or too late, to get a prenup.
A prenup can also cover who will pay any mortgage, whether the non-owner of a property pays rent, and who is responsible for maintenance and improvements, Murphy says.
But keep it simple, says Auckland lawyer Sheila McCabe. If both partners contribute equally to a house and the expenses, or if neither owns much at the beginning, there's probably no point in getting a prenup.
"Just get on with it."
The finances
In the old days, bank statements lay on the kitchen table for both partners to see. But online banking means unexpected activity can remain undetected if one partner doesn't make it their business to check.
"Be nosy," Auckland lawyer Jeremy Sutton says, "Make sure you're aware of what's going on around you."
Disagreements over money are one of the main reasons for divorce, he says. Don't leave finances, investments and bank transactions to one partner.
Ask questions like "Are we going to have separate or joint accounts?" "Are we going to pay the mortgage equally despite what we earn?" "Are we going to save for an overseas trip or to buy a house?" "How are we going to share household expenses?"
Christchurch solicitor Dr Rhonda Powell advises couples to talk openly about money and not to make assumptions.
"People have different attitudes to how money will work in a relationship, and who owns what, and it is better that there are no misunderstandings," she says.
Experts warn not to sign documents, including trusts, unless you fully understand them, and to get independent legal advice. And be aware that your ex can quickly empty joint bank accounts in the event of a split, so make sure you have access to funds before separation.
The house
If you buy a house when you are living together, consider how you're going to do that. Who contributes what? Whose name or names will the property be in? Will it go into a trust?
The two most favoured options are joint tenancy, common with married couples, and tenants in common, where each joint owner has a share of the property. The shares can be equal or unequal depending on how much each has contributed. This option is more common when the joint owners are in a new relationship.
The trust
Watch out for properties owned by a trust, Powell says. If a new love is moving into a property owned by a trust, there needs to be proper documentation around the terms and conditions while the couple lives in the trust's house.
It's also important to be clear that the partner who is not a beneficiary of the trust has no interest in the trust's property.
"Put this in writing," Powell says. "The main point is to have a documented arrangement and not to just wing it."
Make sure the non-interest partner does not spend time and/or money improving the property, as this opens up potential legal claims. Powell's advice is that a couple living in a trust-owned property should get legal advice about how to manage that situation.
"It can be a minefield if the couple has an acrimonious separation, particularly if they are married or in a civil union. Sometimes it is better not to have a trust at all, and to have a contracting-out agreement instead."
And trusts are not as bullet-proof as they once were. The Law Commission has trusts in its sights, recommending the courts have more power to access them. And several major litigation challenges have successfully attacked trusts in recent years.
If a trust already exists before starting a relationship, avoid putting property into the trust during the relationship, review any trust powers that you hold and check who the beneficiaries are, say solicitors Peter Fuscic and Kate Thompson of North Shore law firm McVeagh Fleming.
That's important if your family trust holds valuable property that you want to keep safe from failed relationship claims and intact for children or wider family.
"Even in short duration relationships claims against a trust can occur," they say.
With regard to setting up trusts, question who does the appointment of the trustees and beneficiaries, and who can remove them.
Apart from paying for legal advice, Sutton points out there is a wealth of information on the internet, including more than 100 Ex-Files articles he has written on legal subjects. Other sources include the Ministry of Justice website, other legal websites, community law centres and the Citizens Advice Bureau.
"People should take advantage of all that access to resources," Sutton says.
The family money
If family money comes into your relationship, for example, to help with a deposit on a house, discuss whether it will be a gift or a loan. In the event of a relationship split, the loan might need to be repaid.
Fuscic and Thompson warn that inheritance and gifts from a third party can potentially become relationship property if that money is used to buy chattels or to improve the family home. Separate inheritance property can be protected by a contracting-out agreement or by keeping the money in a separate bank account.
The marriage
Love changes everything and, in some cases, so does marriage. Auckland QC Lady Deborah Chambers advises female clients to get married and tells male clients not to. That's because the law as it stands, particularly where trusts are involved, favours married couples over de facto relationships.
Lawyers can use a "trust-busting" provision - section 182 of the Family Proceedings Act - which allows for a "nuptial settlement" where a trust has been settled during a marriage. But it doesn't apply to de facto couples.
It's an anomaly that the Law Commission wants to be addressed in the proposed new Relationship Property Act, but the Government says change is still years away.
Marrying your de facto partner also means any pre-existing wills are void so they will need to be redone promptly, otherwise you could die intestate, resulting in the Crown and the Public Trust administering your estate, and deciding who gets what.
Sutton points out that those getting married in a church or in a particular religion usually need to do marriage counselling first, which can include answering up to 100 standard questions. That's not a bad process to go through, he says, because it forces couples to slow down and consider issues.
If you're not having a church wedding there are undoubtedly questionnaires you can download from the internet or there are always books like 1001 Questions to Ask Before You Get Married to consult.
The will
Make sure you both have one. More than 40 per cent of Kiwis die without a will every year.
Lawyers advise updating your will (every two to five years), particularly after a life event – marriage, the birth of a child, if your wealth has changed, or a separation.
If couples own property together as joint tenants, including bank accounts, a house or anything with registered ownership, when one dies the surviving partner will automatically get the property.
But if property is registered as tenants in common and one partner dies, the survivor does not automatically get the deceased person's share. Instead, the property will fall into the deceased partner's estate and be distributed according to their wishes.
Getting personal
Aside from the financials, get nosy about your partner's life before committing to a live-in relationship. Sutton suggests checking out his or her social media profile, particularly the past.
"You can get a flavour for what someone is like. They may be presenting one way to you but then they may be presenting a different way on Facebook or Instagram."
It's about getting the full picture, Sutton says, so there are no surprises later on.
Get to know their friends and family. Are they the sort of people you want to share birthdays and Christmas with, or go on holiday with?
Does your partner have support people around them, friends and family they can rely on if something goes wrong? Support networks on both sides are important, Sutton says.
He warns about being in a relationship with someone who has no friends or family, and no outside interests. It can become too intense and turn into a high-dependency situation, putting strain on the relationship. There needs to be an understanding that while the relationship might be exclusive, it is okay to see and do things with other people, he says.
"It is perfectly natural to spend time with other people but we do see in family violence situations where a person is not able to go out at all."
And ask questions. Does the other partner want to have children?
Sutton: "People get married and they don't discuss whether they're going to have children or not."
Women's advocate and divorcee Sarah Sparks advises having the full-and-frank conversations first to save heartache later if the relationship goes pear-shaped. Discuss what will happen to relationship property to avoid matters escalating and ending up in court, she says.
"It robs people of precious time and joy in life," says Sparks who is 10 years into a relationship property battle with her ex.
Value each other and the union by preparing for the worst, yet hoping for the best in a dignified way. And value yourself, Sparks says, by getting independent advice. If you don't have a lot of money, organisations like Community Law can help.
"If your partner pushes back, dump them, as actions speak louder than words. Love is action after all."
Discuss issues you might come up against during a relationship, experts advise. Subjects could include expectations around sex, how much alone time you need, where you want to live, religion, the in-laws, whose career will take precedence if need be, and how you intend to resolve disagreements.
Auckland relationship counsellor Nic Beets says you won't really know your partner until you have a conflict over something significant. Do you truly accept your partner's right to be different from you, he asks? Do you see it as a problem if they disagree with you?
"Appeasement and avoidance are just as destructive in the long term as blaming and shaming," he says.
Think about how you live, what you value, what you put time and energy into. And check out your partner along the same lines.
"Lots of people say family is important, but then neglect their partner or kids in favour of paid work," Beets says. "Or people say that they believe in equality but then are defensive and domineering or, conversely, avoid engaging."
Look at how your partner deals with existing relationships, Beets says. Are they open and caring or enmeshed, distant, or hostile?
Talk about your future plans. "Most of us can't be certain about all those things, but it's a revealing form of intimacy to discuss your hopes and desires for your life. Major incompatibilities are best discovered early," Beets says.
Having the confidence to negotiate upfront when you want something you don't think your partner will like is vital. Trust is important and a component of that is reliability, Beets says. If your partner says something, do they mean it?
"Using white lies or withholding important information to avoid difficult conversations undermines trust."
And have the ability to set boundaries within a relationship, to be clear about what is and isn't okay both with your partner and other people in your lives.
• With grateful thanks to contributors Nic Beets, Peter Fuscic, Sheila McCabe, Candice Murphy, Rhonda Powell, Sarah Sparks, Jeremy Sutton and Kate Thompson.
