Report 113 (2006) - Relationships - Law Reform Commission : Lawlink NSW

1.1 This Report marks the final stage of the Commission’s review of the Property (Relationships) Act 1984 (NSW) (“the PRA”). It contains our recommendations for changes to the law relating to the breakdown of de facto and close personal relationships, in particular the law regulating the adjustment and distribution of property. For reasons that will become apparent in this Introduction,¹ the focus of our review is now directed primarily to people in same sex de facto relationships, as well as close personal relationships. It is anticipated that issues arising from the breakdown of opposite sex de facto relationships will soon be dealt with by federal legislation, presumably the Family Law Act 1975 (Cth) (the “FLA”), and thus lie outside the New South Wales Law Reform Commission’s power to make recommendations for reform.

1.2 By letter dated 6 September 1999, the then Attorney General, the Hon Jeff Shaw QC MLC, asked the Commission to inquire into and report on the operation of the PRA with particular regard to:

1.4 The Commission’s current review marks the second time we have inquired into the law relating to de facto relationships. Our first inquiry was completed in 1983, with the release of our report on De Facto Relationships (Report 36, 1983) (“Report 36”). Report 36 culminated in the enactment of the De Facto Relationships Act 1984 (NSW), which was the name originally given to the PRA.²

1.5 Report 36 reviewed the law relating to family and domestic relationships, with particular reference to people living in opposite sex de facto relationships, and the rights and welfare of the children living in such relationships. Although the terms of reference were broad, the Commission decided to limit its inquiry to opposite sex de facto relationships. Two important consequences flowed from this decision. First, people living in same sex and other forms of interdependent relationships were not taken into account in constructing the legal regulatory frameworks that emerged from Report 36. Secondly, marriage remained the implicit benchmark for at least some aspects of the reform exercise.

1.6 Report 36 recommended that courts be given power to adjust the property interests of people living in de facto relationships where it considered it just and equitable to do so, having regard to the parties’ contributions to the property and the welfare of the family. While the Commission recognised the similarities between de facto relationships and marriages, it considered marriages to be essentially, and inherently, different, with the parties to a marriage bearing greater rights and responsibilities with respect to their interests in property. The Commission recommended that the provisions of the De Facto Relationships Act 1984 give more limited rights with respect to financial adjustment to de facto couples than were then available to married couples under the FLA.

1.7 The De Facto Relationships Act 1984 (NSW) was the first legislation of its kind in Australia, and for that reason, despite what can now be seen as its limitations, it was considered to be a milestone.

1.8 Following on from the hierarchy of relationships set up in Report 36, the De Facto Relationships Act 1984 gave more limited power to courts to adjust the property of people following the breakdown of their de facto relationships than the powers available under the FLA in relation to married couples. In property proceedings under the De Facto Relationships Act (and now, under the PRA), a court could consider matters relating to the parties’ past contributions, but not their future needs or means. This was an essential difference from the regime that applied to the property interests of married couples under the FLA.

1.9 Significant amendments were made to the De Facto Relationships Act in 1999, including a change in name to the Property (Relationships) Act.³ Impetus for these amendments originated in 1993, when the Gay and Lesbian Rights Lobby produced a consultation document entitled The Bride Wore Pink.⁴ The Gay and Lesbian Rights Lobby recommended that the PRA be amended to recognise same sex relationships within its framework for property adjustment between parties to de facto relationships. Subsequently, two private members bills (the Significant Personal Relationships Bill 1997 and the De Facto Relationships Amendment Bill 1998) were introduced to Parliament but failed to proceed. The latter Bill, however, received wide community support and, in October 1998, the State government referred the issues raised in the De Facto Relationships Amendment Bill 1998 to the Legislative Council’s Standing Committee on Social Issues. Before the Committee reported, the government decided to enact its own Bill, the Property (Relationships) Legislation Amendment Act 1999 (NSW) (the “1999 amendments”).

1.10 The 1999 amendments are considered yet another milestone in that they provide a framework for the division of property between people in a “domestic relationship”, which includes same sex cohabiting couples and those in a “close personal relationship”. A “close personal relationship” is a relationship between two adults, whether or not related by family, who are living together in a situation where one provides the other with domestic support or personal care. An example would be where an adult child lives with and cares for his or her elderly parent.

1.11 The 1999 amendments also extended opposite sex de facto rights and obligations to people in same sex relationships in areas such as inheritance, compensation and stamp duty, and amended a smaller number of other Acts to apply to those in close personal relationships.

1.12 Following the passage of the 1999 amendments, the government referred to the Legislative Council’s Standing Committee on Social Issues (the “Social Issues Committee”) the question of which other laws should be changed to be consistent with the amended PRA. It also referred to the New South Wales Law Reform Commission consideration of the operation of s 20 of the PRA, which enables court-ordered financial adjustment, including superannuation, and alteration of property interests of partners in a domestic relationship. The Commission was asked to take account of the work of the Social Issues Committee in its review.

1.13 The Report of the Social Issues Committee raised several issues which it recommended the Law Reform Commission investigate as part of this review, namely:⁵

1.14 In 2002, after the Law Reform Commission’s publication of DP 44, the New South Wales Parliament amended a further 20 State laws to include same sex couples in the definition of de facto partner or de facto relationship.⁶ There are still a small number of Acts that continue to exclude same sex couples, inconsistently with the definitions contained in the PRA. These are canvassed in Chapter 2.⁷

1.15 Under the Australian Constitution, the power to make laws relating to marriage rests with the Commonwealth government,⁸ implicitly leaving the power to make laws relating to relationships outside marriage to the States. Failing constitutional amendment, the only way in which the Commonwealth could legislate about matters relating to non-marital relationships would be if a State chose to refer its legislative power over those matters to the Commonwealth.

1.16 In 2003 (that is, after the release of DP 44), New South Wales referred to the Commonwealth its powers to legislate over financial matters relating to the breakdown of de facto relationships, in the Commonwealth Powers (De Facto Relationships) Act 2003 (NSW). Specifically, that Act provides for the reference of:

1.18 For a long time, commentators and practitioners criticized the lack of uniformity of State and Territory legislation dealing with the division of property between de facto couples.¹³ One submission to the Commission made the following comment:

1.20 The Commonwealth agitated for uniform de facto relationship legislation for a considerable time. It had been a constant agenda item at meetings of the State and Commonwealth Attorneys General (“SCAG”) since at least 2002, if not beforehand. One option was for all the States and Territories to adopt a model uniform law. However, the Commonwealth’s preferred position, and arguably the most efficient, was for the States and Territories¹⁵ to refer their powers over de facto relationships to the Commonwealth, in the same way that they had referred their powers over what were then known as access and custody issues in respect of the children of de facto partners in 1986.¹⁶

1.21 The issue gained momentum once the Commonwealth Parliament passed amendments to the FLA to allow the superannuation interests of parties to be treated as property and thus capable of being divided.¹⁷ As superannuation is an increasingly valuable component of household finances, the ability to distribute it on the termination of a marriage is of obvious importance. However, because the superannuation industry is largely regulated by Commonwealth legislation, there are constitutional constraints on replicating the FLA scheme in State legislation, to the detriment of a substantial number of people living in relationships outside marriage. It was this that provided the impetus for the New South Wales Attorney General to refer powers to the Commonwealth.¹⁸

1.22 New South Wales was the first State to refer its powers over de facto relationships to the Commonwealth,¹⁹ followed closely by Queensland²⁰ and Victoria.²¹ Tasmania has indicated its intention to refer powers but has not yet done so. South Australia has indicated it will not refer powers.²² Western Australia has introduced legislation to refer legislative power to the Commonwealth in relation to the superannuation interests of de facto partners.²³ The Act refers power only in relation to superannuation and not other financial matters, as these are already dealt with in the recently amended Family Court Act 1997 (WA).²⁴

1.23 Apart from ensuring that a single piece of legislation will apply to all people in de facto relationships regardless of where they live in Australia, and making amendments to the legislation easier, there are many advantages in including de facto couples in the FLA.

1.24 First, as mentioned above, de facto couples will have access to the new superannuation splitting provisions of the FLA, introduced in 2003.

1.25 Secondly, the referral will enable jurisdiction over de facto property disputes to be conferred on the courts administering the FLA, notably the Family Court of Australia and the Federal Magistrates Court.²⁵ This means that de facto couples will be able to have their property disputes and any disputes over parenting issues heard in a single court, reducing duplication of proceedings, costs and time. This may also help alleviate the inevitable stress that accompanies the breakdown of relationships.

1.26 Thirdly, by being able to bring matters to the Family Court or the Federal Magistrates Court, de facto couples will have access to a specialised court with proven expertise in handling family disputes, and one which boasts specialised integrated mediation services to promote settlements and reduce costs.

1.27 Lastly, opposite sex de facto couples will be brought within a financial adjustment scheme that affords greater rights and responsibilities than are currently provided for by the PRA. Views will differ as to whether or not this is a benefit, or an appropriate regime to apply to de facto relationships. It is an issue which is at the centre of the Commission’s discussion in Chapter 7 of this Report.

1.29 The first was already noted, at paragraph 1.17, namely the anticipated refusal of the Commonwealth to accept a reference of powers over same sex couples. In a media comment following a SCAG meeting, the then federal Attorney General indicated that the Commonwealth would only take up the reference of powers in respect of opposite sex de facto couples.²⁶ Despite the Commonwealth’s announcement of its intention to legislate for opposite sex de facto couples only, New South Wales, Queensland and Victoria have made provision for the reference of State powers in respect of same sex de facto relationships, as well as opposite sex de facto relationships, to allow for a future Commonwealth government to extend the operation of the legislation, if so minded.²⁷

1.30 A second limitation is that none of the States’ referral Acts has yet commenced. They are all due to commence on proclamation, to allow the various Parliaments time to consider the amendments proposed by the Commonwealth in relation to the FLA.²⁸ If a State Parliament were dissatisfied with the amendments proposed by the Commonwealth, it could choose not to proclaim the referring Act. The practical effect of this delay is that the settlement of financial matters between opposite sex de facto partners continues to be regulated by State legislation, (that is, in New South Wales, the PRA), until such time as the reference of powers comes into operation.

1.31 When the Commonwealth will take up the reference of powers is not known at this stage. In fact, there has been no formal policy announcement by the Commonwealth that it will amend the FLA to include de facto couples.²⁹ The Commission understands that such amendment is on the Commonwealth government’s legislative agenda. We also understand that the Commonwealth is not waiting to receive a referral of powers from all the States before it introduces amendments in the Parliament.

1.32 The reference of the State’s powers to the Commonwealth has, potentially, an enormous impact on this review. A significant difficulty for the Commission has been to determine how to proceed, since the exact limits of the reference of powers, and its implications, remain uncertain until such time as the reference comes into operation. To allow us to continue with our review in any sensible way, we have found it necessary to make certain assumptions.

1.33 Our first assumption is that the Commonwealth will take up the States’ reference of powers with respect to the breakdown of opposite sex de facto relationships some time in the near future. There are two things to note about this assumption. First, it means that the PRA will be predominantly limited in its application to dealing with the breakdown of same sex and close personal relationships. Secondly, and this qualifies our first point, the reference of the State’s powers is very specifically limited to referring power over financial matters arising out of the breakdown of a de facto relationship. Presumedly, opposite sex de facto couples who wish to adjust their property interests during the lifetime of their relationship (rather than as a consequence of a relationship breakdown) will still be brought within the scope of the PRA.³⁰ They will only have access to the Commonwealth legislation if their relationship breaks down.

1.34 Our second assumption is that, once the Commonwealth takes up the reference of powers with respect to opposite sex de facto couples, it is likely to extend the FLA provisions to them in much the same terms as they currently apply to regulate property distribution between married couples. Importantly, we assume that the Commonwealth will not seek to create a second (or more limited) set of rights for de facto couples, which differ in any significant way from those afforded married couples. Thus, when, in this Report, we consider questions of inconsistencies between the federal law’s anticipated treatment of opposite sex de facto relationships under the FLA, and the State’s treatment of same sex de facto and close personal relationships under the PRA, we are assuming that the FLA will provide for the adjustment of property interests between opposite sex de facto couples in essentially the same way as it currently provides for such adjustment between married couples.

1.35 Our third assumption is that, whatever amendments the New South Wales government makes to the PRA consequent upon the recommendations in this Report, they are unlikely to be made until the Commonwealth government takes up the State’s reference of powers over opposite sex de facto couples, or indicates that it will not do so.

1.36 Our fourth assumption is that any amendments that are made to the PRA to give effect to our recommendations, will not apply retrospectively, that is, they will not apply to relationships that break down before the amendments commence. As a consequence, any opposite sex de facto couples who separate before the changes to the FLA take effect (and who will therefore be governed by the PRA rather than the FLA), will be governed by the PRA in its current form.

1.37 The practical consequence of these assumptions is to confine the focus of our review predominantly to people in same sex and close personal relationships. It is these two groups of people who will be mostly affected by any legislative amendments to the PRA that seek to implement the recommendations made in this Report. Having said that, we see no reason why our recommendations for reform could not also apply to matters relating to the breakdown of opposite sex de facto relationships, should any or all of these assumptions prove false. Moreover, given the limitation of the reference of powers to the breakdown of opposite sex relationships, opposite sex de facto couples will still be brought within the scope of the PRA in specific situations, namely the adjustment of property interests during the lifetime of their relationship, the entry into and termination of domestic relationship agreements, and registration of their relationship under our recommended registration system.³¹ Consequently, while this Report pays special regard to issues surrounding same sex and close personal relationships, our recommendations for reform of the PRA are wide enough to apply to opposite sex relationships in these situations.

1.38 The Commission’s first attempt to devise a legal framework for de facto relationships was made more than twenty years ago. As our discussion below demonstrates, the socio-legal context in which our current review is based is markedly different from that of the early 1980s. Courts and legislatures around the world have increasingly recognised and acknowledged the diversity of family forms and household arrangements in which people live.³² An important question for this current review is whether the PRA adequately reflects these social changes, or whether New South Wales should now seek to adopt a more expansive model of property adjustment.

1.39 The focus of our present review is also significantly different from that of our first inquiry. In 1983, the Commission considered legislative models as they might apply to people living in opposite sex de facto relationships. Now, as a consequence of the 1999 amendments to the PRA, and the anticipated reference of powers to the Commonwealth, the starting point of this Report is the distribution of property following the breakdown of same sex de facto and close personal relationships. While we do not intend to limit our approach for reform to such an extent as to exclude a more general application of our recommendations to opposite sex de facto relationships, issues relating to same sex and close personal relationships are at the centre of this review, and form the basis for considerations for change.

1.40 How we live and what family forms we develop have undergone radical change over the last half-century.³³ Traditional concepts of the nuclear family, comprising parents who are married to each other and raise their biological or adopted children, are being challenged by a number of different family structures. These changes in family forms are linked to a range of social and economic trends. The increasing rates of divorce and remarriage, for example, have seen a corresponding increase in the numbers of single parent, step and blended families. The trend towards later partnering, and delayed child bearing, has contributed to lower fertility rates, increased childlessness and increased numbers of couple-only families. Such trends have implications for the nature and composition of families. For example, as more and more young people stay in education longer, and postpone partnering, couples with children tend to be older.³⁴

1.41 Couple families with children (that is, where two parents live together) are still the most common type of family in Australia today, although the proportion of such families declined over the 15 years between the 1986 and 2001 censuses.³⁵ Conversely, the proportion of couples without children, single-parent families, and people living alone increased over the same period.³⁶

1.42 A recent study shows that the presence of children is most likely to affect how Australians define a family. This study reports that couples with children are more likely to be considered a family than couples without children. Same sex couples with children are considered families by 65% of younger Australians, compared with only 14% of older Australians.³⁷

1.43 The nature of couple families (that is, families with two cohabiting partners) is also changing, with an increasing number of couples choosing to cohabit, before marrying, or instead of marrying.³⁸ The number of men and women choosing to live together before marriage has risen from 46% in 1986 to 72% of registered marriages in 2001.³⁹ Cohabitation is, in these instances, considered a pathway or stepping-stone to marriage.⁴⁰ Australian Bureau of Statistics data also shows that, in the same period, marriage rates dropped and increasing numbers of people never married.⁴¹

1.44 Australian Institute of Family Studies research highlights the changing trends in family formations. It demonstrates that increasing numbers of couples are cohabiting though the majority still eventually marry.⁴² Expectations of marriage among men and women who cohabit vary with previous marital experience, age and the length of time that the parties have lived together. Those who had never married before were, for example, more likely to expect to marry their partner than those who had been married before. Older partners were also less likely to say they expected to marry their partner and for both partners, expectations of marriage decreased the longer they cohabited.

1.45 While the rate of divorce among married couples who had lived together prior to marriage might be expected to be lower than for those married couples who had not previously cohabited, the converse appears to be true.⁴³ Cohabitation prior to marriage is no guarantee against separation and divorce. Despite the higher incidence of cohabitation, and its growing social acceptance, research by the Australian Institute of Family Studies suggest that for men and women, marriage is still the preferred family form.⁴⁴

1.46 Same sex couples cannot legally marry.⁴⁵ It was not until the 1996 Census that the Australian Bureau of Statistics began to collect and tabulate data on the incidence of same sex families. The Census form relies on same sex couples volunteering information about themselves rather than explicitly asking them to tick a box saying they are in a same sex de facto relationship. The Census defines same sex couples as “two persons of the same sex who report a de facto partnership in the relationship question, and who are usually resident in the same household”.⁴⁶ As the Census relies on self-reporting, the Bureau itself concedes that its data may have some limitations. Many people may be reluctant to identify themselves as being in a same sex de facto relationship.

1.47 The 1996 Census reported that there were 10,000 same sex families in Australia. By 2001, the figures doubled, to 20,000 same sex families, suggesting an increase in those willing to identify as partners in a same sex relationship.⁴⁷ Of these, 11,000 were gay male couples and 9,000 were lesbian couples.⁴⁸ New South Wales had the largest reported number of same sex couple families with 8,913, ⁴⁹ the vast majority of them (6,986) living in Sydney.

1.48 According to this data, same sex families represent 0.5% of all couple families in 2001.⁵⁰ Twenty per cent of lesbian households and five per cent of male same sex relationships were reported to contain children. The 2001 Census did not collect any data on whether the children were born from previous opposite sex relationships or from other parenting arrangements, nor did it take into account single gay and lesbian parents.

1.49 As it has become apparent that the nature of the family unit is a dynamic one, trends and attitudes have changed with time. De facto relationships no longer have the same social stigma that once attached to them in the 1960s or 1970s.⁵¹ Their greater social acceptance, reflected in most areas of law, has contributed to increasing numbers of people choosing to cohabit without marrying, and raising children outside marriage. It is significant that some legislative initiatives in other States to regulate the distribution of property between de facto couples have rejected New South Wales’ approach in the PRA, with its perception of the nature of de facto relationships as inherently distinct from marriage, and moved instead towards the model set up for married couples by the FLA.⁵² The legal status of same sex families has also undergone considerable change over the last 25 years. As mentioned earlier, same sex couples are now legally recognised for a variety of different purposes, at both federal and State level.⁵³ They are, for example, recognised in matters such as superannuation, hospital and coronial rights, property settlement, taxation, compensation payments and in matters relating to wills and estates.

1.50 As the population ages, there is increasing recognition of the caring role performed by family, friends and neighbours. In 1998, there were 2.3 million carers in Australia.⁵⁴ Three quarters of these carers provided care to someone living in the same household.

1.51 The Australian Bureau of Statistics defines a carer as someone who provides help or supervision to any person with a disability or who has an ongoing health condition, or to any person aged 60 years and over.⁵⁵ A primary carer is a carer who assists the other person with basic activities of self-care, mobility or communication.

1.52 In 1998, about one in five carers were reported to be primary carers. Those who took on the primary care role were almost always a family member of the person needing care, most commonly their wife, mother, daughter or husband. Two thirds of carers had been providing care for over five years, while 12% reported that they had been caring for the other for over 20 years. Most carers said they felt a family obligation to provide care.⁵⁶

1.53 Primary carers are more likely to live in the same household as the person being cared for if that person is their partner or child. In contrast, less than half of those who were caring for a parent, or someone other than a parent, partner or child, were living with that person.

1.54 The caring role can be very taxing on the carer, emotionally, physically and financially. For many carers, it is the equivalent of a full-time job, without the remuneration. In fact, for over half of the primary carers in Australia in 2003, their main source of income was reported to be a government pension or allowance.⁵⁷

1.55 What should be the aims of the Commission’s recommendations for change to the PRA, and what principles should guide our approach to reform? In answering these questions, the Commission has taken account of the social context in which the PRA now operates, as well as changes to the law both in New South Wales and elsewhere since the introduction of this State’s de facto legislation, which reflect different conceptions of what it is to be a family. We have also taken account of views expressed by members of the public within our consultation process.⁵⁸ With these considerations in mind, the following basic principles have guided our approach to reform:

1.58 In DP 44,⁵⁹ the Commission raised the question of whether the PRA should include a provision that expressly sets out the objects of the legislation. We received a mixed response from submissions.

1.59 The principal advantage of including an objects clause in the PRA is that it would provide a statement of what Parliament intended its purposes to be, and how it should operate. Objects clauses are, in this way, an aid to statutory interpretation, particularly where the words of the statute itself fail to set out the intention of a specific provision clearly and unambiguously.⁶⁰

1.60 A number of submissions received by the Commission supported the inclusion of an objects clause in the PRA.⁶¹ A few submissions, on the other hand, considered that an objects clause was unnecessary,⁶² or did not support its inclusion for fear it may be unduly restrictive.⁶³ New South Wales Young Lawyers commented that, rather than assisting interpretation, an objects clause may have unexpected negative consequences. They viewed the proposed objects clause as inappropriate. The Anglican Diocese of Sydney had a particular concern with the objects clause proposed in DP 44 on the basis that it implied that marriage is outdated and that “those who hold strongly to its principles should be forced to recognize the validity of its alternatives”.

1.61 The Women’s Legal Resources Centre, which supported the inclusion of an objects clause, suggested that it be formulated to include express reference to the impact of domestic violence on women and children, and to acknowledge the significance of non-financial contributions, in the alteration of property interests.⁶⁴

1.62 The Commission does not consider that an objects clause would restrict statutory interpretation. The increasing use of objects clauses in modern statutes is a positive step. Apart from assisting judicial interpretation where there is uncertainty and ambiguity, it makes the legislation far more accessible to the lay reader, including those whom it seeks to protect. We have therefore recommended that an objects clause be included in the PRA in the terms set out below. They reiterate the principles put forward in DP 44, with the exception of the second object. This object recognizes the specific focus of the PRA, once the Commonwealth takes up the referral of powers. It draws attention to the fact that one of the aims of the legislation is to reduce the impact of homophobia on people in non-traditional relationships and facilitate their access to justice.

1.63 We have not incorporated the suggestion of the Women’s Legal Resources Centre, because it is too specific for the purposes of an objects clause. Nor do we agree with the Anglican Diocese of Sydney that an objects clause that recognizes the diversity of domestic relationships must necessarily imply that marriage is outdated. On the contrary, our recommendation simply acknowledges that other forms of domestic relationships also exist, for which the statutory regime set up by the PRA may have relevance. By doing so, we do not seek to detract in any way, and nor could we, from the continuing validity of marriage.

1.64 In paragraph 1.46-1.48, the Commission noted the limited empirical evidence that is available about gay and lesbian relationships in Australia, and the consequent difficulties involved in drawing any firm conclusions or generalisations about same sex relationships. With this in mind, we consider that, if our recommendations for reform to the PRA are implemented, the PRA should be subsequently reviewed to evaluate the impact of reform on, in particular, the gay and lesbian community, and to ascertain whether it is achieving its stated objectives.

1.65 There is a view, perhaps cynical, that the name of the PRA was changed from the De Facto Relationships Act to the Property Relationships Act when it was amended in 1999 in order to divert attention away from the fact that the rights contained in the Act were being extended to same sex de facto couples. Some commentators noted that the 1999 amendments passed through Parliament with barely any vocal opposition. The suggestion was that many members, who might otherwise have opposed the legislation, were led to believe that the Act was more about property than relationships.⁶⁵

1.66 Regardless of the motivation for the name change, the Commission does consider it somewhat odd and misleading to imply that the PRA concerns only property relationships. While it is true that one of the principal objects of the legislation is to provide a statutory regime for the alteration of property interests between domestic partners, the Act also provides statutory recognition of various forms of human relationships, for example, close personal relationships. The adoption of the PRA definitions of these relationships in a myriad other State laws has significant implications in many different areas of life. It affects who can benefit on intestacy, for example, or who is the next of kin of a person with whom a medical professional should consult in emergency situations. For this reason, the Commission thinks it is too narrow, misleading and superficial to continue to refer to the Act as the Property (Relationships) Act. Furthermore, if a new Part is inserted in the Act to implement and regulate an optional system of registration of domestic relationships, as recommended by the Commission in Chapter 4, there will be even more reason to rename the Act the “Relationships Act”.

1.67 There is also much to be said for revisiting the terminology in relation to how we describe relationships. The word “de facto” originally was used to describe a marriage in fact but not in law. Most people in New South Wales, and around Australia, are familiar with the term “de facto”. In other parts of the world, different terminology is used. In Britain, people living in relationships akin to, but outside, marriage are referred to as common law husbands or common law wives. Despite studies which show that the vast majority of people in Great Britain assume that cohabiting couples have the same rights and entitlements as married couples, they still only have recourse to common law and equity to settle any property disputes that arise when their relationships end.

1.68 Since the introduction of the Civil Partnership Act 2004 (UK), there are now “civil unions” in Britain.⁶⁶ The parties to those civil unions are called “civil partners”. Similar terminology applies in New Zealand, Canada and in several states of America.

1.69 If the Commission had raised the issue of terminology in DP 44, and consulted on this specific issue, we may have made some recommendations in this regard. However, that is not the case. The Commission notes that all the case law and commentary on the PRA refer to de facto couples and de facto relationships. This terminology, though somewhat archaic, is part of common parlance and everyone is familiar with it. Consequently, although the Commission considers that the terms “civil unions” and “civil partners” are more modern terms, we make no recommendation for change at this time.

1.70 In April 2002, we released DP 44 as a preliminary consultation paper in this review. It examined the major issues concerning the PRA, as well as several other areas of law that deal broadly with family relationships. For example, it examined the broader issue of the law’s place in the regulation of relationships, in which situations it was appropriate for the law to do so and what principles should inform such regulation. The Commission also examined the issue of non-recognition of the relationship between a child and a non-biological parent.

1.71 DP 44 was based on research, findings of previous reviews and preliminary consultations that gave rise to various issues. It posed a series of questions and invited feedback and discussion from the public.

1.72 The Commission received less than 30 submissions in response to DP 44, despite a second mail-out in August 2002. Though disappointing in number, the Commission was very grateful to have received several very substantial submissions that went into lengthy discussion on the issues raised and alerted the Commission to other issues not previously canvassed. The Commission would like to thank those who took the time to contribute to this review.

1.73 The release of DP 44 preceded the State’s reference of powers to the Commonwealth. The scope of the Commission’s discussion was therefore much broader in that paper, in so far as it considered the application of the PRA to non-marital relationships generally, including opposite sex de facto relationships. In the light of the reference of powers, and the consequent shift in focus of our review, the Commission undertook further and specific consultations with the gay and lesbian community to ascertain its views on the issues raised in DP 44 and to discuss various options for reform. These consultations took two forms: first, we posted a questionnaire on our website, directed specifically at the gay and lesbian community, and secondly, we organised a series of focus groups with members of gay and lesbian communities in Sydney and Lismore on the separate issues of property and parenting.

1.74 The questionnaire was designed to obtain qualitative and quantitative information about respondents’ views on how the PRA operates and if it should be changed to mirror the financial adjustment provisions of the FLA. The survey also sought respondents’ views on a range of other issues including whether there should be a registration system for gay and lesbian couples and how the law should recognise non-biological parents.

1.75 A total of 69 respondents completed this survey. A report of the results of the questionnaire can be found in Part B of Appendix C, and the questionnaire itself is reproduced in Part A of Appendix C. The Commission thanks all those who responded to the questionnaire.

1.76 The Commission also arranged for focus groups to be held in both Sydney and Lismore. One focus group in each location considered issues concerning same sex parenting. A second focus group in each city centred on issues relating to property and maintenance, including the availability and use of financial agreements. The Commission had also intended to run two focus groups in outer western Sydney, but these had to be abandoned because few participants registered. Experienced facilitators who were sensitive to the issues being discussed were engaged to run the focus groups. The views expressed by focus group participants are noted throughout this Report. The Commission thanks all participants for taking part in the discussion.

1.77 An important matter of concern arising from discussions in the focus groups with lesbians and gay men was that very few were aware of their rights under the legislation. Few knew that they could enter into binding financial agreements before or during their relationship. Many had no idea that they could bring an action under the PRA for an order for a share of property held only in the other’s name.

1.78 The Gay and Lesbian Rights Lobby, in their submission, spoke of similar findings from their consultations with lesbian and gay families. The Lobby submitted that many of those families were still unaware of the legal recognition granted to them in 1999 across a wide variety of laws, including the amendments to de facto relationships legislation to cover their relationships in the same way as opposite sex de facto couples. The Gay and Lesbian Rights Lobby argued that a public education campaign is needed to inform people of their rights.⁶⁷

1.79 It is particularly important in the case of legislation such as the PRA, which is not administered by a public body but instead requires parties themselves to bring proceedings or negotiate within the knowledge of their rights and responsibilities under the legislation, that they be well informed of what those rights and responsibilities are. We support the call for an education strategy to raise awareness of the PRA among those directly affected by those changes.

1.81 Part One relates to the ways in which the law defines and recognizes domestic relationships, and to the purposes of legal regulation of such relationships. It consists of this Chapter, and the next four chapters:

1.84 Part Four relates to the various means of dispute resolution for financial adjustment under the PRA. Chapter 13 deals with aspects of formal adjudication by the courts, and Chapter 14 looks at mediation.

Table of contents

2. See Property (Relationships) Legislation Amendment Act 1999 (NSW) Sch 1[2].

3. See Property (Relationships) Legislation Amendment Act 1999 (NSW) Sch 1[2].

4. This paper was subsequently redrafted into a second edition in 1994: see Lesbian and Gay Rights Service, The Bride Wore Pink: Legal Recognition of Our Relationships: A Discussion Paper (2nd ed, Sydney, 1994).

5. NSW, Legislative Council, Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Inquiry into De Facto Relationships Legislation) (Report 20, Parliamentary Paper No 127, 1999) Recommendation 26.

6. See Miscellaneous Acts Amendment (Relationships) Act 2002 (NSW) and Chapter 2 at para 2.58.

12. See below at para 1.29. The Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) makes it clear that the reference of powers over one type of relationship acts independently of the reference of powers over the other. That is, the reference of powers over opposite sex relationships is not defeated by reason of the Commonwealth’s refusal to accept a reference of powers over same sex relationships: see s 4(2).

13. For example, Australia, Constitutional Commission, Advisory Committee, Distribution of Powers (Report, 1987) Ch 4; Australia, Family Law Council, Comments on the Report of the Joint Select Committee on the Operation and the Interpretation of the Family Law Act (Report to the Minister for Justice, 1993) at para 9.02.

15. Note that the Australian Capital Territory and the Northern Territory do not strictly need to make a reference of powers to the Commonwealth, because of the power of the Commonwealth over the Territories under s 122 of the Commonwealth Constitution.

16. See Commonwealth Powers (Family Law - Children) Act 1986 (NSW); Commonwealth Powers (Family Law - Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); Commonwealth Powers (Family Law – Children) Act 1986 (Vic); Commonwealth Powers (Family Law) Act 1987 (Tas). Western Australia was the only State not to refer its powers. The Western Australian Family Court, a State court, is vested with jurisdiction over federal legislation as well as state legislation: see FLA s 41.

17. See Chapter 8 at para 8.13-8.14 for discussion of the FLA scheme for the division of superannuation entitlements, and the constitutional constraints on New South Wales in replicating that scheme.

18. See NSW, Parliamentary Debates (Hansard) Legislative Council, 5 September 2003 at 3236.

19. Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), yet to be proclaimed.

20. Commonwealth Powers (De Facto Relationships) Act 2003 (Qld), yet to be proclaimed.

21. Commonwealth Powers (De Facto Relationships) Act 2004 (Vic), yet to be proclaimed.

22. The SA government has undertaken a review of its legislation: see Parliament of South Australia, Social Development Committee, Statutes Amendment (Relationships) Bill 2004 (Report 21); see also Statutes Amendment (Relationships No. 2) Bill 2005 (SA).

24. See Family Court Amendment Act 2002 (WA). The aim of the WA referral is for the Commonwealth to legislate so as to give the Family Court of WA the same jurisdiction and powers in relation to the superannuation interests of de facto couples as it has in relation to married couples under the superannuation splitting arrangements contained in the FLA.

25. Jurisdiction to hear disputes between de facto couples under the PRA had been conferred on the Family Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). However, the cross-vesting scheme collapsed when the High Court ruled it unconstitutional in Re Wakim (1999) 198 CLR 511.

26. See I Munro, “Gay couples left out of court shift” The Age (8 March 2002) at 3. See also B Crawford, “Family equality for gays: Kirby” The Australian (28 October 2002) at 3; F Shiel, “Family Court should rule on gay disputes: Kirby” The Age (28 October 2002) at 3.

27. See Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) s 4(1)(b); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld) s 4(1)(b); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic) s 4(1)(b).

28. See Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) s 2; Commonwealth Powers (De Facto Relationships) Act 2003 (Qld) s 2(1), and note s 2(2), which expressly overrides the application of s 15DA of the Acts Interpretation Act 1954 (Qld) (giving automatic commencement 12 months from the date of assent); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic) s 2.

29. To date, there has been only media comment from the office of the then Commonwealth Attorney General, Daryl Williams, following the meeting of the Standing Committee of Attorneys General in 2002: “Commonwealth wins de facto property powers” (Media release of the Commonwealth Attorney General, 8 November 2002).

30. There could be a number of reasons why a de facto couple may want to adjust their property interests during the lifetime of their relationship (whether they be in a same sex or opposite sex relationship). For example, they may wish to adjust their shares in property without incurring stamp duty, or they may wish to prevent third party creditors of one partner from gaining access to assets by transferring title to the other partner.

32. See NSW Law Reform Commission, Review of the Property (Relationships) Act 1984 (DP 44, 2002) at para 1.7.

33. See, for example, M Gilding, “Changing families in Australia, 1901-2001” (2001) 60 Family Matters 6. See also D de Vaus, Diversity and Change in Australian Families: Statistical Profiles (Australian Institute of Family Studies, Melbourne, 2004).

34. Australian Bureau of Statistics, Australian Social Trends 2003 (Catalogue No 4102.0, 2003) at 37.

35. Couple families with children made up 60% of all households in 1986 compared with 52% in 2001. See Australian Bureau of Statistics, Australian Social Trends 2005 (Catalogue No 4102.0, 2005) at 7.

36. Between 1986 and 2001, the proportion of people living in one-parent families increased from 9% to 12%, the proportion of people living as partners in couple families without children increased from 17% to 20%, and the proportion of people living alone has increased from 7% to 9%: see Australian Bureau of Statistics, Australian Social Trends 2005 (Catalogue No 4102.0, 2005) at 8.

37. S Wilson, G Meagher, R Gibson, D Denemark, and M Western (ed), Australian Social Attitudes: The First Report (UNSW Press, Sydney, 2005).

38. The number of couples in de facto relationships increased from 6% in 1986 to 12% of all couple families in 2001. See Australian Bureau of Statistics, Australian Social Trends 2003 (Catalogue No 4102.0, 2003) at 38.

39. See also D de Vaus, L Qu and R Weston, “Changing patterns of partnering” (2003) 64 (Autumn) Family Matters 10-15.

40. See also L Qu, “Expectations of marriage among cohabiting couples” (2003) 64 (Autumn) Family Matters 36.

41. Australian Bureau of Statistics, Australian Social Trends 2003 (Catalogue No 4102.0, 2003) at 38.

42. L Qu and R Weston, “Starting out together: through cohabitation or marriage” (2001) 60 (Spring-Summer) Family Matters 76.

43. See L Qu, “Expectations of marriage among cohabiting couples” (2003) 64 (Autumn) Family Matters 36.

44. See L Qu, “Expectations of marriage among cohabiting couples” (2003) 64 (Autumn) Family Matters 36.

45. In 2004, the Commonwealth passed the Marriage Amendment Act 2004 (Cth) to amend the Marriage Act 1961 by confining the meaning of “marriage” to the “union of a man and a woman, to the exclusion of all others, voluntarily entered into for life”: see s 5 of the Marriage Act 1961 (Cth). This was intended to ensure that Australian courts could not in the future redefine marriage to include same sex unions or recognise same sex marriages entered into abroad: see also Marriage Act 1961 (Cth) s 88B(4), 88EA.

46. Australian Bureau of Statistics, 2001 Census Dictionary (Catalogue No 2901.0, Canberra, 2001) at 248.

47. Australian Bureau of Statistics, 2005 Year Book Australia (Number 87, Catalogue No 1301.0) at 142.

48. See Australian Bureau of Statistics, 2005 Year Book Australia (Number 87, Catalogue No 1301.0) at 142-144. See also D Dale, “The closet door opens on 19,596 gay couples” Sydney Morning Herald (20 June 2002) at 1, reporting on the census findings as they relate to families of same sex couples.

49. There were 4,613 same sex couples reported in Victoria and 2,500 in Queensland. The numbers were much smaller in the other States and Territories.

50. Australian Bureau of Statistics, 2005 Year Book Australia (Number 87, Catalogue No 1301.0) at 142.

53. There remain some significant areas of non-recognition at the State level including, for example, adoption, and more so at the federal level, including, for example, in the areas of immigration and social security. See J Millbank, Same-Sex Families (Legal Information Access Centre, Hot Topics No 53, 2005). See also Human Rights and Equal Opportunity Commission, Same-Sex: Same Entitlements (National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits) (Discussion Paper, 2006).

54. Australian Bureau of Statistics, Disability Ageing and Carers: Summary of Findings (Catalogue No 4430.0, 1998) at 10.

55. See Australian Bureau of Statistics, Disability Ageing and Carers: Summary of Findings (Catalogue No 4430.0, 1998) at 65.

56. Australian Bureau of Statistics, Disability Ageing and Carers: Summary of Findings (Catalogue No 4430.0, 1998) at 47-51.

57. See Australian Bureau of Statistics, Australian Social Trends 2005 (Catalogue No 4102.0, 2005) at 43.

60. See discussion in DP 44 at para 2.16. The Property Law Act 1974 (Qld) includes an objects clause in relation to its financial adjustment scheme for de facto couples in s 255.

61. Victorian Bar, Submission at 3; Gay and Lesbian Rights Lobby Inc, Final submission at 5; Lesbian and Gay Solidarity, Submission at 1; Women’s Legal Resources Centre, Submission at 4.

65. See J Millbank and K Sant, “A bride in her every-day clothes: same sex relationship recognition in NSW” (2000) 22 Sydney Law Review 181 at 201-205.

66. These relate only to same sex partners. The Act was not extended to opposite sex cohabiting couples.