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De Facto Decisions Review Background

30 August 2002

Work And Income Offers To Review

De Facto (Marriage-Type) Decisions

Background Information


1. In October 1996, the Court of Appeal set a new test for determining whether a relationship is a “relationship in the nature of a marriage’ in terms of section 63 (b) of the Social Security Act 1964. Details of the case that led to the new test are outlined on the next page.

2. In 1997, the National Government introduced legislation (the Conjugal Status Bill) so that the Court of Appeal ruling would be overturned retrospectively. The bill was never passed.

3. In September 2000, Associate Social Services and Employment Minister Ruth Dyson commissioned Auckland lawyer Frances Joychild to prepare an independent report on whether Work and Income (formerly Income Support) was applying the correct legal test for relationships “in the nature of a marriage’ (de facto relationships) as defined by the Court of Appeal in 1996.

4. On 13 March 2002, Ruth Dyson released Ms Joychild’s report. It concluded that Work and Income did not consistently apply the correct legal test for de facto relationships between 1 November 1996 and 31 December 2000, and made a number of recommendations. The principal recommendation was that all relevant cases during that time period should be reviewed.

5. On 13 March 2002, Ms Dyson also released the Ministry of Social Development’s response to the Joychild report. The ministry said it agreed with most of Ms Joychild’s recommendations and was working to implement them. It said further work needed to be done before a decision could be made as to whether all relevant cases between 1 November 1996 and 31 December 2000 should be reviewed. Both Ms Joychild’s report and MSD’s response are available on www.msd.govt.nz

6. On 30 August 2002, Ruth Dyson announced that the Ministry of Social Development would offer to review all relevant cases between 1 November 1996 and 31 December 2000, where people’s benefits were stopped and/or they had to pay back money because they were deemed to be living in a de facto relationship. Cases that had already been prosecuted in a district court or considered by the Social Security Appeal Authority would not be eligible.


1996 Court of Appeal case

Miss R lived with Mr T for about 18 years, from 1974 to 1992. They never married. The relationship was characterised by severe violence.

Miss R had a child to Mr T in 1977. Mr T never provided financial support for her or their child. He gave little or no assistance with domestic duties and took little part in looking after their child.

Between 1977 and 1992, Miss R received various welfare benefits.

Following an anonymous tip-off, Work the Income investigated Miss R’s case and referred it to the district court for prosecution, on the grounds that she had failed to disclose her relationship with Mr T. She was convicted, her benefit was cancelled and the court directed her to pay back $44,759.93.

Miss R unsuccessfully appealed to the High Court. She then appealed to the Court of Appeal.

In 1996, the Court of Appeal found that, in order for a relationship to be “in the nature of a marriage’, two essential features must be present:

- a degree of companionship demonstrating an emotional commitment, and

- financial interdependence.

The court also found that the effect of violence in a relationship must be taken into account when assessing these features.

In Miss R’s case, the Court of Appeal found that there was no financial interdependence because Mr T had not provided any financial support and, further, that the violence and other forms of control exerted by Mr T meant that the required emotional commitment was not present.

The Court of Appeal allowed Miss R’s appeal and quashed her convictions.

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