Appendix C: Part B: Responses to the questionnaire: same sex relationships and the law

Updates and background for this project (Digest)

C.1 This Part to Appendix C sets out and analyses the responses to the Commission’s questionnaire on same sex relationships and the law. The questionnaire itself is reproduced as Part A to this Appendix.

BACKGROUND

C.2 In Chapter 1, the Commission discussed the reference by New South Wales to the Commonwealth of its powers to legislate over financial matters relating to the breakdown of de facto relationships. As we explained,¹ a likely consequence of the referral of powers is that the Property (Relationships) Act 1984 (NSW) (“the PRA”) will apply predominantly to people in same sex and close personal relationships. We therefore decided to conduct targeted consultations with members of the gay and lesbian community through both a series of focus groups² and through the use of a questionnaire.

PURPOSES OF THE QUESTIONNAIRE

C.3 The questionnaire was designed to obtain qualitative and quantitative information from the gay and lesbian community in New South Wales about the current operation of the PRA, and to invite feedback on options for legislative reform, including the option to adopt a scheme for financial adjustment similar to the scheme under the Family Law Act 1975 (Cth) (“the FLA”).³ The questionnaire also sought views from the gay and lesbian community on a range of other issues raised in this Report, including the possibility of a registration system for de facto couples, and legal recognition of non-biological parents.

METHODOLOGY

Development of the questionnaire

C.4 The Commission developed the questionnaire, and sent it in draft form for comment to several people with particular experience in consulting with the gay and lesbian community.⁴

Recruitment of questionnaire respondents

C.5 The Commission posted the questionnaire on its website and invited responses by September 2004. People who wished to respond could do so by printing out a copy of the questionnaire and either faxing it or mailing it to us. We advertised the questionnaire in the gay and lesbian press, in the Sydney Star Observer and Lesbians On The Loose. We also sent emails to contact people in gay and lesbian networks,⁵ alerting them to the questionnaire and asking them to forward the information to others. Lastly, we left flyers advertising the questionnaire in the offices of several organisations with contacts with the gay and lesbian community, such as the Gay And Lesbian Rights Lobby, and the Aids Council of New South Wales.

RESPONDENTS

Response rates

C.6 A total of 69 respondents completed this questionnaire. Respondents suggested that there would have been a much greater response rate if the questionnaire had been available to complete and submit online. Unfortunately, the Commission was unable to facilitate this. Respondents were therefore required to print the document, complete it and send it back to the Commission by mail or fax.

Characteristics of respondents

C.7 Respondents’ ages ranged from 18 to 56 years and over. Most respondents (61%) were in the 36-55 year age range. A substantial number (30%) were in the 18-35 year age group and 3% of respondents were over 56 years of age. There were no respondents aged 16-17. Six per cent of respondents did not answer this question.

C.8 The number of female respondents was 42 (61%) and the number of male respondents was 24 (35%). Six per cent of respondents did not answer this question.

C.9 Most of the respondents (93%) had been or were at the time in a same sex de facto relationship.

C.10 Most of the respondents (81%) lived with their partner at the time of response.

SUMMARY OF FINDINGS

The division of property

C.11 Part A of the questionnaire sought views on how property should be divided up following the breakdown of a relationship.

C.12 The majority of respondents (93%) believed the law governing the division of property should be the same for both same sex and opposite sex de facto relationships.

C.13 Question 2 of the questionnaire asked respondents to indicate which of the following factors should be considered when adjusting parties’ interests in property:

• Direct financial contributions to the purchase, maintenance or improvement of property of either of the parties;
• Direct financial contributions to the financial resources of the parties or either of them;
• Indirect financial contributions to the purchase, maintenance or improvement of property of either of the parties;
• Indirect financial contributions to the financial resources of either of the parties;
• Home making contributions, including parenting contributions;
• The effect of any order on a party’s earning capacity;
• Any child support payments;
• The terms of any financial agreement entered into by the parties.

• 84% considered that child support payments should be taken into account;
• 88% considered that the terms of any financial agreement between the parties should be taken into account;
• 88% considered that direct financial contributions to financial resources should be taken into account;
• 88% considered that indirect financial contributions to financial resources should be taken into account;
• 91% considered that homemaking contributions should be taken into account; and
• 93% considered that indirect financial contributions to the purchase, maintenance or improvement of the parties’ property should be taken into account.

• The age and health of the parties;
• Whether the parties have the care and control of any child of the relationship who is under 18 years;
• Whether the parties have any responsibilities to support any other person;
• The income, property and financial resources of the parties, including their eligibility to receive government assistance;
• The length of the relationship and the extent to which it has affected the earning capacity of the parties;
• What standard of living is reasonable for each of the parties in all the circumstances;
• The contributions made by either of the parties to the income and earning capacity of the other.

• 80% thought that responsibilities to support another person should be taken into account;
• 80% thought that the parties’ age and health should be taken into account;
• 84% thought that the income, property and financial resources of the parties should be taken into account;
• 93% thought that the contributions made by either party to the income and earning capacity of the other party should be taken into account; and
• 96% thought that the length of the relationship and its effect on the parties’ earning capacity should be taken into account.

• Registration of the relationship;
• Any pre-existing legal arrangements; and
• Whether either party had a disability requiring ongoing support.

Period of cohabitation

C.19 The majority of respondents (84%) thought that people in a domestic relationship should have lived together for a particular length of time in order to be able to claim a share of each other’s property if they split up.

C.20 Responses were mixed as to the actual period of cohabitation that should be required in order to attract the financial adjustment scheme. Currently, the law stipulates that a person must have lived with the other for two years in order to be eligible to apply for an order for financial adjustment, unless the parties have a child together, or unless one has made substantial contributions to the relationship or takes care of the other’s child.⁶ Of those respondents who thought that parties should live together to make a claim on each other’s property, 28% agreed that two years was appropriate, 25% thought that the period should be increased to three years, 12% said that people should only be required to live together for one year, 32% were unsure what the period should be, and 3% did not answer the question.

Partner maintenance

C.21 Question 7 of the questionnaire asked respondents to indicate which of a list of statements concerning partner maintenance they agreed with. The responses are summarised below:

• Only 10% of respondents considered that partners should never have to pay maintenance to their ex-partners after they have split up.
• 80% of respondents agreed that partners should pay maintenance to ex-partners only if either the ex-partner has the ongoing care of a child of the relationship, or because the ex-partner’s earning capacity was affected by the relationship and he or she requires some re-training or study.
• In cases where maintenance is paid for the purpose of re-training or study (rather than to support children), 30% of respondents agreed that it should be paid for up to three years only.
• Where maintenance is paid to support a child or children of the relationship, then 22% of respondents took the view that it should be paid until the youngest child starts school. Conversely, 7% considered that it should be paid for up to three years, regardless of the age of the children.
• 49% of respondents agreed that the right to maintenance should end once the partner receiving maintenance begins living with a new partner.
• 81% of respondents agreed that the courts should consider maintenance as part of the overall process of dividing up property between partners.
• 26% of respondents considered that maintenance should be paid in a lump sum where possible, rather than in periodic instalments.

C.22 The majority of respondents (78%) did not know that the PRA allows partners to enter into a binding relationship agreement. Accordingly, the majority of respondents had not entered into a written agreement with their partner.

C.23 Of the 20% who indicated that they were aware they could make binding financial agreements under the PRA, only 17% said they had actually drawn one up.

C.24 Of those who had made an agreement, all said they had asked a solicitor to prepare the agreement.

C.25 Of those who had made an agreement, all said they had sought independent legal advice. This is a requirement under the PRA. If not satisfied, the agreement is not validly made and therefore not binding.⁷

C.26 The majority of respondents did not make an agreement because they did not know that they could do so. Those who did know but had not entered into an agreement cited cost as the major reason for not doing so. Many respondents also felt that a formal agreement was unnecessary where a relationship was based on trust.

Should there be a registration system for people in same sex relationships?

C.27 Question 13 of the questionnaire asked respondents whether they believed there should be a registration system for same sex couples.

C.28 The majority of respondents (65%) believed there should be a registration system for same sex couples, 14% disagreed and almost 20% were unsure or did not give a response.

C.29 Of those who did not support a registration system, some of the reasons given were:

• “Because there is none for de facto heterosexual couples”
• “The law and bureaucracy rely on bits of paper”
• “Same sex couples should be able to marry like heterosexual couples can, not have a separate registration process”
• “It discriminates against same sex couples”

C.31 Conversely, many respondents indicated that a registration system would be discriminatory as opposite sex de facto couples do not have to register their relationship and still have some legal entitlements. In addition, some respondents were concerned about potential privacy issues that may arise from having their relationship publicly documented.

C.32 Some of the comments given by respondents regarding this issue included:

• “If gay marriage is not possible, please start civil union for gay and lesbian couples”
• “I think when gay marriage is not recognised in this land we should at least have civil union”
• “A registration system needs to be set up ASAP”
• “I do not want my relationship to be seen as marriage”
• “Same sex de facto should equal heterosexual de facto. Same sex civil unions should equal heterosexual marriages”

C.33 Part E of the questionnaire related to legal recognition of non-biological parents (“co-parents”)⁸ in same sex relationships.

C.34 The majority of respondents were unable to respond to the question regarding possible practical or emotional difficulties of not being a legal parent, as this was not applicable. A small number responded that yes, they had experienced difficulties through not being the legal parent of a child that they were raising.

C.35 Only 6% of respondents indicated that they had sought a parenting order under the Family Law Act 1975 (Cth). Of these, there seemed to be consensus that legal representatives were helpful in this process, although the courts were unhelpful.

C.36 The majority of respondents (99%) believed that gay and lesbian step-parents should be eligible to adopt a child in the same way as opposite sex step-parents. The reasons given again focused on notions of equity and fairness. In addition, a recurring comment was that adoption would protect the rights of both the child and the non-biological parent.

C.37 In response to question 21, relating to presumption of parenthood for lesbian co-mothers, the majority of respondents (80%) believed that a co-mother should be presumed to be the legal parent of a child if the lesbian couple decided to have a child together using artificial insemination procedures. The most common reason given for this was again to protect the rights of the parent and the child. However, many respondents (80%) believed that it should not be assumed that a partner has consented to being a co-mother and that both parties need to agree to this arrangement.

C.38 Some of the comments given by respondents regarding this issue included:

• “The rights of co-mothers seem very hazy”
• “Co-mothers need to have the same access rights as afforded to biological fathers if they have been intimately involved with the child”
• “I would like to see provisions made for non-biological mothers names to appear on the birth certificate of children born into that relationship”
• “The law should provide a clear way to recognise rights of biological donor fathers not simply those of co-mothers”

C.39 Part F of the questionnaire sought respondents’ views on whether or not an automatic duty to support a child should be imposed on co-mothers. 58% of respondents thought that there should only be an automatic duty for a co-mother to support a child if the co-mother is recognised as a legal parent. 39% of respondents believed that the obligation to pay child support should exist regardless of whether or not the co-mother is recognised as a legal parent. 3% of respondents did not answer. There were no respondents who answered no to the question of whether an automatic duty of child support should exist.

Other comments

C.40 There were many and varied general comments provided by the respondents. These included:

• “Changes should be fast-tracked, we’ve been in limbo too long!”
• “Very upset by new Marriage Act amendments”
• “It would be fair for same sex couples to have the same legal rights and responsibilities as different sex couples”
• “I would like to have the same legal rights and recognition as heterosexual couples and individuals in all areas of law”
• “I believe as human beings our relationships are the same and equal”
• “The state should not be able to discriminate against couples be they straight, gay or some other arrangement”
• “It appears that society needs to be encouraged to accept our relationships”
• “More education resources and legal information is needed in the community on parenting etc”

C.41 The findings of the questionnaire into same sex relationships and the law indicate that there is a general consensus among the gay and lesbian community on several key issues, including that:

• Same sex relationships should be treated by the law in the same way as opposite sex de facto relationships;
• People in a domestic relationship should have lived together for a length of time in order to be able to claim a share of each other’s property if they split up;
• There should be a registration system for same sex couples;
• Gay and lesbian step-parents should be eligible to adopt a child in the same way as opposite sex step-parents; and
• A co-mother should be presumed to be the legal parent of a child and accordingly should provide financial support for the child if her relationship with the biological mother ends.

1. See Chapter 1 at para 1.15-1.37.

2. The details of the focus groups are set out in Chapter 1, at paragraph 1.76, and responses from focus groups participants are referred to throughout this Report, where relevant to the particular issue under consideration.

3. See Chapter 7 for discussion of the FLA scheme for financial adjustment.

4 Ms Jackie Braw, (then) Gay and Lesbian Liaison Officer, NSW Attorney General’s Department; Mr Daniel Madeddu.

5 These contact people were sourced through Ms Braw, (then) Gay and Lesbian Liaison Officer of the NSW Attorney General’s Department.

6. See Chapters 2 and 6.

7. See Chapter 12.

8. See Chapter 5.