Background and history of this project (Digest)

BACKGROUND
The De Facto Relationships Act 1984 (NSW) was an innovative piece of legislation when enacted, pioneering Australian statutory schemes for dealing with property disputes between non-married cohabiting heterosexual couples on the breakdown of their relationships. It flowed from the 1983 report of the NSW Law Reform Commission, De Facto Relationships (Report No 36). The De Facto Relationships Act 1984 (NSW) was in force for over fifteen years and until 1999 there had been no amendments of any major substance. Nor has there been any systematic evaluation of the legislation. In 1999, after it was amended significantly, the Attorney General asked the Law Reform Commission to review the Property (Relationships) Act 1984 (NSW) (as it is now called). The terms of reference are annexed at Appendix A.

Recent amendments to the De Facto Relationships Act 1984
The De Facto Relationships Act 1984 (NSW) was amended and renamed the Property (Relationships) Act 1984 (NSW) in 1999. The amending legislation made two particularly significant changes to NSW law. First, the definition of de facto spouse was changed to include same sex cohabiting couples in the parts of the Act that deal with adjusting property interests when a relationship breaks down as well as for a number of other purposes in NSW law.¹ Secondly, the amendments introduced the concept of “domestic relationship” for the first time in NSW legislation. A “domestic relationship” is defined as:

5 (1) ...
(a) a de facto relationship, or
(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

An earlier bill, the De Facto Relationships Amendment Bill, introduced into Parliament in 1998 by the Australian Democrats, had provided for a larger number of enactments to be amended so that they applied to same sex couples. It also had a wider definition of “domestic relationship”.³ Questions about the breadth of the amending legislation were referred to the Legislative Council’s Standing Committee on Social Issues and before that Committee reported, the Government introduced and enacted its own bill.⁴

In December 1999, the Committee recommended that the Government examine all NSW legislation “to determine whether amendments need to be made to ensure a consistent application of the new definition of ‘de facto’” in the 1999 legislation and that employment related laws and awards should be made consistent with the Property (Relationships) Legislation Amendment Act 1999.⁵ The Committee also recommended that the definition of “close personal relationship” in s 5(1)(b) be “broadened to encompass a wider range of interdependent personal relationships”, including non-cohabitants.⁶ The Law Reform Commission will be looking closely at the coverage of the legislation and will pay particular attention to the matters raised by the Standing Committee on Social Issues.

ISSUES FOR DISCUSSION
The Commission welcomes preliminary submissions on any aspect of the terms of reference. To assist those interested in responding, following is a list of matters being investigated by the Commission as part of its work for a Discussion Paper to be published later in 2000.

Financial issues
Since coming into effect, there has been considerable debate about the operation of the property adjustment aspects of the legislation (which until recently applied only to heterosexual couples).⁷ Section 20 of the Act authorises a decision-maker to make such orders as seem to the Court just and equitable, having regard to the contributions of the parties (both financial and non-financial). So the Court looks back at the history of the relationship, but does not take account of the future, such as any needs that one party might have because of the relationship.⁸ This is different from the situation under the Family Law Act 1975 (Cth) which deals with disputes between people who have been married. Put simply, the Family Law Act 1975 takes into account both (past) contribution and (future) needs.⁹

There are also other financial issues being considered. These include:

• Have “homemaker” contributions been appropriately valued?
• How should superannuation be taken into account when property interests are being adjusted at the end of a relationship?
• What effect, if any, will the extension of the Property (Relationships) Act 1984 to people in same sex and other non-couple interdependent relationships have on the criteria for property adjustment in the Act?
• Should there be an obligation to support a partner after a relationship breaks down? If so, in what circumstances?
• How effective are cohabitation and separation agreements (now called “relationship agreements”) which can be made under the Act? Should they be retained/expanded?

Children’s Issues
The 1999 amendments added several new provisions in the Property (Relationships) Act 1984 including section 5(3) which defines a “child of the parties to a domestic relationship” to include “a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998)”.¹⁰ While this may extend to same sex co-parents, the Standing Committee on Social Issues noted in its report that there are many contexts in which lesbian and gay co-parents do not have legally recognised relationships with the children of their partners. The Committee recommended that “the issue of legal recognition of non-biological parents to ensure children of those in non-traditional domestic relationships are not disadvantaged be fully examined”.¹¹ Another issue raised was the fact that the Federal child support scheme may not take into account lesbian and gay co-parents. The Commission is interested in views on the following issues:

• What, if any, process should there be for recognition of non-biological co-parents?
• What rights and obligations should follow from any such recognition? For example, should a non-biological co-parent be obliged to pay child support for a child they have been raising with a partner after they split up?

Dispute resolution

Disputes under the Act are usually determined in either the NSW District Court or the Supreme Court. The Standing Committee on Social Issues received a number of submissions on what are seen as gaps in the jurisdiction of the District Court and this is a matter the Commission is exploring. Some other issues include:

• How effective has decision-making proved to be in the District and Supreme Courts?
• Is there a need for a special State family or relationships court or some other specialist decision-making body? If that is not feasible, what other mechanisms might ensure that decision-makers are best equipped to deal with the broader array of relationships that legislation of this type acknowledges and supports?

Coverage of the legislation
The 1999 amendments extended coverage of some twenty different areas of law to people in same sex couples, as well as to those in other non-couple interdependent caring relationships. There is no need to “register” a relationship: the law applies to anyone who falls within the new definitions. The Gay and Lesbian Rights Lobby had identified more than fifty NSW Acts that affected people in same sex relationships and had proposed that these all be amended. The Lobby had also proposed a broader category of “close personal relationship” that was not limited to cohabitants in carer relationships.¹² This was reflected in the 1998 Bill introduced by the Australian Democrats.¹³ Another bill, the Significant Personal Relationships Bill, introduced by Clover Moore MP in 1997 as a private member’s bill, had used a different definition of relationship:

A significant personal relationship means a relationship which exists because the parties to the relationship:

(a) mutually acknowledge:

(i) their emotional interdependency, or
(ii) the fellowship and support that each provides to the other, or
(iii) both, and

(b) believe that the relationship will continue and are mutually committed to the relationship continuing.

The Standing Committee on Social Issues recommended that the Property (Relationships) Act 1984 (NSW) should be broadened in the ways that the 1998 Australian Democrats Bill had proposed, that is, it should apply to more areas of law, and it should have a broader definition of “close personal relationship”. The Commission is examining the appropriate scope and breadth of NSW law in the context of a range of other national and international developments in relationship recognition.

• Should the definition of “domestic relationship” under the Property (Relationships) Act 1984 be broadened? Should cohabitation be a requirement? For example, should it be possible for people not living together to be in a “domestic relationship” and if so, in what circumstances?
• What other areas of NSW law should accord legal rights (and obligations) to people in “domestic relationships”?

Relationship recognition
Some jurisdictions, notably in the USA and parts of Europe, have introduced systems under which same sex (and in some cases, heterosexual unmarried) couples may register their relationships for various purposes, while others have witnessed case law developments based on equality challenges to legislation that had excluded same sex couples.¹⁵

These legal developments and challenges raise a host of difficult questions about the role of law in recognising and supporting certain types of relationships. Many of these are being considered as part of similar reviews by law reform bodies in other jurisdictions.¹⁶ Some of these issues include:

• Is the manner in which the law currently frames its various policies appropriate to the range of adult relationships in modern society?
• Should the law single out particular types of adult relationships for special recognition? Should marriage continue to be the benchmark against which other forms of relationship are measured?
• What should be the main focus of any reforms to the ways in which relationships are recognised? Should they be designed to address particular identified problems, or should they be directed at the symbolic aspects of relationships? Should they do both?
• Should there be a system for recognising relationships that require people to register their relationships before they are legally recognised? What are the advantages and disadvantages of such a system?

Preliminary submissions
Preliminary submissions on any of the matters raised by the terms of reference are welcome. In order for these to be taken into consideration in the discussion paper, submissions should be received by the Commission by 31 May 2000. Submissions should be sent to:

Executive Director
NSW Law Reform Commission
GPO Box 5199
SYDNEY NSW 1044

phone: (02) 9228 8230
facsimile: (02) 9228 8225

email: nsw_lrc@agd.nsw.gov.au
website: www.lawlink.nsw.gov.au/lrc

APPENDIX A: TERMS OF REFERENCE
In September 1999, the NSW Attorney General asked the NSW Law Reform Commission to review the Property (Relationships) Act 1984, with the following terms of reference:

The Commission is to inquire into and report on the operation of the Property (Relationships) Act 1984, with particular regard to:
• the financial adjustment provisions of the Act and in particular:
(i) the effectiveness of section 20 in bringing about just and equitable adjustments of the parties’ respective interests; and
(ii) whether the current legislation is able to take into account superannuation entitlements effectively;
• the process of decision-making or determination of rights;
• the Commission’s Report No 36, De Facto Relationships (1983);
• the 1999 amendments incorporating the Property (Relationships) Legislation Amendment Act 1999 and the matters referred to the Legislative Council’s Standing Committee on Social Issues regarding the rights and obligations of persons in interdependent personal relationships; and
• any related matter.

FOOTNOTES
1. Most notably those concerning inheritance, accident compensation, stamp duty and decision-making in illness and after death.

2. Only those concerning statutory property division, inheritance, bail, and stamp duty.

3. For a discussion of this bill see Jenni Millbank, “The De Facto Relationships Amendment Bill 1998 (NSW): The Rationale for Law Reform” (1999) 8 Australasian Gay and Lesbian Law Journal 1.

4. Jeff Shaw QC, “Same-Sex Relationships: Law Reform Happens” (1999) 24 Alternative Law Journal 247.

5. NSW Legislative Council Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Report 20, Parliamentary Paper 127, 1999) (“Standing Committee Report”) Recs 12 and 10 respectively at 67. It was also proposed that the government “review and amend all legislation imposing responsibilities and obligations to require similar compliance by those in same sex relationships as those in opposite sex relationships” and that “adequate measures” be put in place “to protect the privacy of those making disclosures regarding their same sex relationship” (see Rec 11 at 67).

6. Standing Committee Report Rec 7 at 55.

7. Compare, for example, the decisions in Dwyer v Kaljo (1992) 27 NSWLR 728 and Evans v Marmont (1997) 42 NSWLR 70.

8. Although there is separate statutory provision made for limited “remedial” spouse maintenance, in practice that provision has been little used: see Property (Relationships) Act 1984 (NSW) s 27.

9. See Family Law Act 1975 (Cth) s 79.

10. See also amendments to the District Court Act 1973 (NSW); Trustee Act 1925 (NSW); Coroners Act 1980 (NSW) and Family Provision Act 1982 (NSW).

11. Standing Committee Report Rec 22 at 82.

12. See Lesbian and Gay Legal Rights Service, The Bride Wore Pink (Sydney, 2nd ed, 1994) accessible from http://www.rainbow.net.au/~glrl/ under “discussion papers”.

13. For a discussion of the De Facto Relationships Amendment Bill 1998, and a list of the Acts that it would have amended, see Jenni Millbank, “The De Facto Relationships Amendment Bill 1998 (NSW): The Rationale for Law Reform” (1999) 8 Australasian Gay and Lesbian Law Journal 1.

14. In Australia, the ACT is the only jurisdiction that provides a statutory framework for property alteration between non-cohabitants: see Domestic Relationships Act 1994 (ACT).

15. See, for example, the decision of the Supreme Court of Canada in M v H (1999)171 DLR (4th) 577 which resulted in the amendment of some 67 different statutes to cover cohabiting same sex partners on the same basis as cohabiting heterosexual couples.

16. For example, by the Justice Department in New Zealand and by the Law Commission of Canada.