Beyond Marriage: Evaluating Legal Protection Against Intimate Partner Violence In De Facto And Casual Relationships In Aotearoa New Zealand

ABSTRACT This article examines the legal effectiveness of protection orders under New Zealand’s Family Violence Act 2018 in the context of de facto, casual, and non-cohabiting intimate partner relationships. While the Act purports to move beyond the confines of marriage and cohabitation by recognising “close personal relationships,” the practical application of this provision has proved inconsistent and, at times, exclusionary. Victims in informal or contested relationships often encounter significant evidentiary and procedural hurdles when seeking protection orders—obstacles compounded by judicial discretion, vague statutory guidance, and social assumptions about relationship legitimacy. Drawing on statutory analysis, case law, and comparative approaches from Australia, Canada, and the United Kingdom, this article argues that New Zealand’s current legal framework continues to privilege conventional relationship forms, thereby limiting equitable access to protection. It critically assesses the threshold requirements for obtaining protection orders, the burden of proving relationship status, and the intersection with parenting disputes under the Care of Children Act 2004. The analysis reveals that the law’s relational prerequisites can obscure the core issue of risk and harm, particularly for victims of coercive control, digital abuse, or psychological violence. The article concludes by proposing legislative and policy reforms, including clearer statutory definitions of intimate relationships, judicial training, evidentiary presumptions based on credible risk, and enhanced support for victims outside legally recognised partnerships. These reforms are necessary to align New Zealand’s legal response to intimate partner violence with contemporary relational realities and ensure that protection is guided by the presence of harm, not the form of a relationship. Keywords: Family Violence Act 2018; Close Personal Relationships; Non-Marital Intimate Partner Violence; Protection Orders in New Zealand; Legal Barriers to Victim Protection Introduction The legal recognition of intimate partner violence (IPV) in New Zealand has evolved significantly since the enactment of the Domestic Violence Act 1995, culminating in the more comprehensive Family Violence Act 2018 (FVA).[1] While the statutory framework reflects an intentional departure from the narrow, marriage-centric view of family violence, important questions remain about how effectively the law operates in practice for individuals in de facto, dating, or casual relationships. These relationship forms—common in contemporary society—are often less visible in legal discourse, yet they form a substantial proportion of cases involving coercive control, emotional abuse, and physical harm.[2] Section 12 of the Family Violence Act 2018 defines a “family relationship” broadly to include spouses, civil union partners, de facto partners, and those in a “close personal relationship,” regardless of whether they cohabit.[3] While the statutory language appears inclusive, in practice, the threshold for proving the existence of such relationships—especially in the absence of marriage or long-term cohabitation—can be prohibitively high for applicants seeking urgent protection orders.[4] Furthermore, individuals in informal or short-term relationships may encounter evidentiary challenges, particularly where there is no shared residence, limited mutual financial dependence, or conflicting narratives about the relationship’s seriousness.[5] These obstacles create substantive risks that victims in non-marital relationships may be unprotected or disbelieved at precisely the moment when intervention is most needed. The issue is especially pressing given that a significant proportion of intimate partner violence occurs outside of legally formalised relationships. In the 2021 New Zealand Crime and Victims Survey (NZCVS), more than half of the respondents who experienced IPV indicated that the perpetrator was not a current or former spouse.[6] Moreover, young adults—who are less likely to be married or in long-term de facto relationships—are statistically more vulnerable to controlling and violent behaviours, yet less likely to engage with formal legal protections.[7] In this context, the law’s requirement that a “close personal relationship” must be proven to obtain a protection order presents a substantial access to justice barrier. This article critically examines the legal and procedural framework for protection orders under the Family Violence Act 2018 as it applies to individuals who are not married. It interrogates the adequacy of current legislative definitions, the evidentiary standards applied by the Family Court, and the implications for victims who fall outside the conventional bounds of domestic partnership. Particular attention is paid to how relationship status intersects with parenting responsibilities, access to custody orders under the Care of Children Act 2004, and judicial attitudes toward informal or disputed partnerships.[8] In addition to analysing relevant case law and statutory interpretation, this study adopts a comparative perspective, reviewing how jurisdictions such as Australia and the United Kingdom have responded to similar challenges in IPV legislation. The article ultimately argues that while New Zealand’s legal framework is outwardly progressive, it continues to privilege relationship forms that conform to traditional legal expectations. This has the effect of marginalising a growing demographic of IPV victims who remain structurally under-protected by the existing legal regime. Relationship Definitions under the Family Violence Act 2018 The Family Violence Act 2018 (FVA) was introduced to modernise New Zealand’s legislative approach to family violence, aiming to offer broader protection than its predecessor, the Domestic Violence Act 1995. One of the Act’s most significant reforms lies in its definitional framework—particularly how it conceptualises and categorises relationships that may form the basis for protection orders.[9] Recognising that family violence extends beyond the traditional marital context, the FVA sought to expand legal recognition to a wider array of relationships, including de facto partnerships, civil unions, dating relationships, and other forms of close personal connections. Section 12 of the FVA outlines four categories of relationships that qualify for protection orders: (a) spouses or partners, including civil union and de facto partners; (b) family members; (c) individuals sharing a household; and (d) persons in a “close personal relationship.”[10] While the first three categories are relatively straightforward in their application, the fourth—“close personal relationship”—is both crucial and contentious in the context of non-marital intimate partner violence. It represents the key legislative mechanism through which victims in casual or non-cohabiting relationships may seek protection, but it also poses interpretive challenges for applicants, courts, and counsel. The Act does not offer a conclusive definition of a “close personal relationship,” instead requiring courts to consider a non-exhaustive list of factors under section 12(3), including the nature, intensity, and duration of the relationship; the frequency of contact; and the level of commitment between the parties.[11] While the open-ended nature of these criteria is arguably intended to support flexible, case-by-case adjudication, it simultaneously introduces ambiguity, particularly for applicants whose relationship history may not conform to normative expectations.[12] This ambiguity creates two distinct issues. First, it places a burden on the applicant to establish the nature of the relationship through admissible evidence, often in emotionally complex and contested circumstances. In cases where there is no shared residence, joint property, or children, this may involve providing private communications, photographs, social media interactions, or witness statements—all of which may be scrutinised for credibility.[13] Second, it leaves considerable discretion to judges, some of whom may be more inclined to apply conventional assumptions about what constitutes a “real” relationship. This judicial discretion can result in inconsistent outcomes, especially in cases involving young couples, LGBTQ+ individuals, or culturally specific relationship forms.[14] An example of this discretionary tension is illustrated in M v R [2019] NZFC 1478, where the Family Court was asked to determine whether a brief, non-cohabiting relationship qualified under s 12(1)(d). Despite a clear history of control and harassment, the Court declined to grant a final protection order, citing insufficient evidence of “relationship seriousness.”[15] Such reasoning, critics argue, risks conflating the need for protection with the perceived legitimacy of the relationship. The nature of violence or risk posed should arguably be the focal point, rather than the formality or duration of the relationship.[16] Moreover, the reliance on relationship status as a gateway thresh

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