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

2.1 The Property (Relationships) Act 1984 (“the PRA”) applies to people in a “domestic relationship”. A “domestic relationship” is the umbrella term used to refer to de facto and close personal relationships.¹ Part One of this Report considers the ways in which the PRA defines and recognises these types of relationships. This Chapter considers the definition of “de facto relationship”. It questions whether it is appropriate for the PRA to define a de facto relationship according to certain requirements. It also considers whether the PRA definition of “de facto relationship” should be adopted uniformly in legislation in New South Wales, rather than various definitions of the term applying to discrete pieces of legislation.

2.2 According to s 4(1) of the PRA, a relationship must satisfy three threshold criteria in order to be eligible for consideration as a de facto relationship. The mere existence of these elements is not enough in itself to attract the operation of the PRA; all the circumstances of the relationship must then be considered to determine whether it is a de facto relationship so as to come within the scope of the Act.² These three elements serve as a first step towards establishing this, and, as such, require proof that, for the time of the relationship, the parties:

2.5 There are two distinct situations in which the PRA includes a requirement of cohabitation within the definition of a “de facto relationship”. The first is in the general definition of a de facto relationship, in s 4(1)(a): a de facto relationship is a relationship in which (among other things) two people “live together as a couple”. This general definition of a de facto relationship does not insist upon a particular period of time for which a couple must live together. This definition applies throughout the PRA, unless otherwise specified, and also applies to the various other pieces of State legislation which refer to, and make provision for, de facto relationships, and which adopt the general definition of that term set out in s 4 of the PRA.⁴ In addition to this general definition, s 17 of the PRA imposes a specific requirement for parties to a domestic relationship, who wish to make a claim for property adjustment (including maintenance) under Part 3 of the PRA, or who seek to give effect to a domestic relationship agreement or termination agreement under Part 4 of the PRA,⁵ to show that they “lived together in a domestic relationship for a period of not less than two years”.⁶

2.6 The terms “live together as a couple” and “lived together in a domestic relationship” are not further defined in the PRA. Specifically, it is ambiguous whether the notion of “living together” requires cohabitation, or simply proof of some form of a shared life, without necessarily a shared residence. It appears that, in formulating its original definition of a de facto relationship, on which the statutory definition is based, the Law Reform Commission used the term “living together” as implying some element of cohabitation, both in relation to the general definition of de facto relationship, and the more specific type of de facto relationship which attracts the operation of the financial adjustment scheme. The Commission referred to Commonwealth legislation, from which it drew its definition of a de facto relationship. That legislation in turn referred to de facto spouses as people who live together in the same household.⁷

2.7 Certainly, there appears to be an assumption in the case law that the notion of “living together” involves some form of cohabitation.⁸ In one case, Master McLaughlin expressly said that, in light of the definition of a “de facto relationship” in the PRA, and in particular the requirement that parties live together as a couple, “… it is difficult to envisage the existence of a de facto relationship in circumstances where the parties do not actually, throughout the period of the relationship, reside together on a full-time basis …”.⁹ In an earlier case, Justice Mahoney appears to use the terms “live together” and “cohabit” interchangeably, noting that, in situations such as where a couple takes separate holidays, cohabitation is not essential to the continuance of a de facto relationship, but where one party decides not to “live together” with the other, the relationship ceases.¹⁰

2.8 In DP 44,¹¹ the Commission considered whether cohabitation should continue to be a required element of the definition of a de facto relationship, in either or both the general usage of that term, or its more specific application to the property adjustment scheme under Part 3 of the PRA. This question generated much debate in the focus group discussions and in the questionnaire, as well as in submissions.

2.9 De facto relationships are typically considered to involve a certain level of mutual commitment and interdependence, which raise them above more casual intimate relationships for the purposes of attracting various legal rights and obligations. In the context of formulating a general legal definition of a de facto relationship, (rather than its specific application to a financial adjustment scheme), cohabitation is a conventional and convenient indicator of such mutual commitment and interdependence. However, to confine legal recognition of de facto relationships solely to those relationships involving cohabitation is arguably too limiting, and excludes a number of people who fall outside traditional relationships but who nevertheless see themselves as forming part of a committed partnership. For example, it excludes lesbian and gay couples who choose not to cohabit for fear of homophobia, or for other reasons. The continued requirement of cohabitation in the PRA, when it was amended in 1999, was considered by some as “possibly the greatest flaw of the New South Wales Act definition, as in many cases it could mean nothing is gained for people in non-traditional relationships”:

2.12 In relation to the more specific definition of the type of de facto relationship that attracts the operation of the financial adjustment scheme under Part 3 of the PRA, the same objections to imposing a cohabitation requirement apply. Parties to a relationship may share a significant level of emotional and financial interdependence without sharing a residence, particularly people in non-traditional relationships. To impose a two-year cohabitation requirement in order to attract the application of the financial adjustment scheme is arguably to exclude certain people who have been in financially interdependent relationships but who have not cohabited. It is interesting to note that, despite this objection, the 1998 Bill implicitly retained a two-year cohabitation requirement for de facto and domestic relationships where parties sought relief under the financial adjustment scheme.¹⁹ This contrasts with the position taken in the 1997 Bill, which required that, in order for the property division scheme to apply, the domestic relationship must have existed for not less than two years, but did not require that the parties to the relationship cohabit for two years.²⁰

2.13 The Australian Capital Territory, the Northern Territory, and Tasmania, do not include a cohabitation requirement within their general legislative definitions of a de facto relationship.²¹ However, all these jurisdictions impose a “duration” requirement on the types of de facto relationships that attract the operation of their property adjustment schemes. In the Australian Capital Territory and Tasmania, the parties must show that the relationship existed for at least two years, and in the Northern Territory, parties must show that they lived together for two years (subject to certain exceptions).²²

2.14 The South Australian government has also considered the question of whether to retain a cohabitation requirement in its legal definitions of a de facto relationship.²³ Most laws in South Australia require partners to live together in order to prove the existence of a de facto partner or a “putative spouse”. Some laws stipulate that partners should cohabit for two years, while others require five years’ cohabitation. The government took the view that cohabitation is required because:

2.15 Of those submissions that considered this issue, there was strong support for the proposal to remove the requirement of cohabitation from the general definition of a de facto relationship.²⁵ Cohabitation could be relied on as an indicator of a de facto relationship, rather than as an essential element.²⁶ To require cohabitation, it was submitted, is out of step with modern relationships, especially many gay and lesbian relationships.²⁷ Conversely, the Equity Division of the Supreme Court submitted that the common community understanding of what it was to be in a de facto relationship incorporated a notion of cohabitation.²⁸

2.16 In relation to the more specific notion of a de facto relationship which attracts the financial adjustment scheme under Part 3 of the PRA, a number of submissions considered that it was appropriate to continue to require a minimum period of cohabitation before entitling a person to bring an application for adjustment. It was submitted that a two year cohabitation requirement indicated a sufficiently committed relationship so as to warrant the application of the scheme, and also had the effect of discouraging unmeritorious or opportunistic claims.²⁹ The Equity Division of the Supreme Court submitted that requiring cohabitation sifts out trivial claims. It also argued that an alternative threshold would be needed if cohabitation were no longer required in order to keep out claims where substantial injustice is unlikely to have occurred.³⁰ On the other hand, one submission argued that the two year minimum cohabitation period is discriminatory, and should only apply if it is also required of married partners before they can claim the property of the other.³¹

2.17 The New South Wales Law Society sought to distinguish the purpose of requiring cohabitation. It submitted that cohabitation should not be a requirement for the purpose of determining whether a relationship exists but argued that it was both necessary and desirable to require at least two years’ cohabitation with regard to property issues:

2.19 The Women’s Legal Resources Centre submitted that the financial adjustment jurisdiction of the PRA should be attracted if a relationship has existed for two years, taking into account the indicia of a relationship, as set out in s 4 of the PRA.³⁴

2.20 The majority of respondents to the questionnaire³⁵ (84%) believed that the PRA should continue to require people in a domestic relationship to have cohabited before entitling them to claim a share of each other’s property when they split up.³⁶ However, there was little consensus about the minimum period of cohabitation that should be required. 28% of respondents agreed that the current two year period was appropriate but 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 and 32% were unsure what the period should be.

2.21 At the Sydney focus group, which was attended mostly by gay men, more than half of whom were in or had been in a cohabiting de facto relationship, the majority of participants agreed that cohabitation was a good indicator of the parties’ commitment to the relationship. However, they also conceded that it was not always the case. One participant explained that he and his partner had maintained separate homes for the first two years of their relationship as each had children from a previous marriage. Although they did not cohabit, he considered himself to have been in a de facto relationship for that first two year period.

2.22 Another view was that recognising a relationship after two years provides some protection for people who drift into relationships and who are not aware of their rights and responsibilities under the PRA, or who have not entered into any agreement. It was submitted that partners should live together for a reasonable period of time before legal obligations are imposed. Conversely, it was argued that the two year cohabitation requirement should be waived where the parties had entered into an agreement.

2.23 By contrast, the Lismore focus group was attended predominantly by women, all of whom were currently in a same sex de facto relationship, ranging in duration from 7 to 26 years. Almost half of the group had children within the context of their present relationship. The majority of the Lismore participants considered that cohabitation should not be a mandatory prerequisite to the application of the PRA. It was noted that couples in same sex relationships are more likely not to cohabit than couples in opposite sex relationships. In addition, one participant suggested that using cohabitation as an essential indicator of a de facto relationship forces people in same sex relationships to conform to a heterosexual paradigm. A number of people suggested that the focus should be on contributions rather than cohabitation. Most people agreed that cohabitation was a useful indicator of a certain type of relationship and had a place as one of the factors to be taken into consideration by a court.

2.24 There are two issues. The first is whether the PRA should continue to define a de facto relationship as one between two adult persons who live together, and the consequent effect of any amendment to this definition on all New South Wales laws that rely on the PRA definition of a de facto relationship. The second issue is whether the PRA should continue to require parties to live together for at least two years before they may bring an application for property adjustment or maintenance under Part 3.

2.25 The definition of a de facto relationship. Whether cohabitation should continue to be required in the PRA definition of a de facto relationship depends largely on the purposes for which it is required. Should it be required, for example, to show that a de facto relationship exists for the purpose of decision-making in illness or after the death of a partner, or disclosure of pecuniary interests? One might argue that in these situations, it is not relevant whether the parties live together in the same house continuously. The first scenario concerns the question of whether to allow a person, with whom the seriously ill or injured person had a significant relationship, to make certain decisions in relation to the care of that person. In relation to the second scenario, the disclosure of pecuniary interests, if the object is to disclose potential conflicts of interest, again whether or not the person lives with his or her partner would appear immaterial. What matters is the social and emotional interdependency of the partners and their commitment to each other.

2.26 The major advantage of removing the cohabitation requirement from the definition of de facto relationship is that couples in non-cohabiting, non-traditional relationships would not be automatically excluded at the first barrier. It would admit intimate couples who are mutually committed to each other and emotionally and/or financially interdependent but who, for a variety of reasons, do not live together. This would include de facto couples who live apart during the week, either through choice or work commitments, but spend their weekends together, and couples separated because one of them is in prison or working overseas.

2.27 The Commission notes that more recent State and Territory relationships legislation has dispensed with the requirement that a couple live together in order to come within the definition of a de facto relationship.³⁷

2.28 The Commission considers that cohabitation should not be a threshold requirement under the PRA to prove the existence of a de facto relationship. It ought simply to be one of a number of factors that the Court may take into account when asked to determine or declare the existence of a de facto relationship under s 4(2). A new definition of de facto relationship should be adopted that dispenses with the requirement for a couple to live together. This definition should be used for the purposes of certain other laws where cohabitation is immaterial, such as laws relating to health and care issues, discrimination and domestic violence.

2.29 An amendment to dispense with the requirement of cohabitation in the definition of de facto partner in the PRA would have a follow-on effect on other New South Wales laws reliant on this definition. Some of those laws in which financial implications arise for the State, an employer or an insurer already require that de facto partners live together for a minimum period.³⁸ A change in the PRA definition will not alter this. The minimum period of cohabitation will continue to apply in those cases.

2.30 There will, though, be other areas of law that will need to be examined individually, and decisions taken as to whether protections or entitlements afforded by those laws should be extended to non-cohabiting de facto couples. In situations where the entitlements hinge more accurately on the nature of the relationship between two people, and less so on whether or not they live together (such as decision-making in emergency medical situations, guardianship, or to access the rights and protections afforded by anti-discrimination, domestic violence and evidence laws), there is likely to be little justification for excluding non-cohabiting couples. On the other hand, where certain financial benefits are available, such as exemptions from stamp duty, there is merit in limiting these benefits to cohabiting couples only.

2.32 The PRA applies only to people who are aged 18 or over. One of the issues discussed in DP 44 was whether the Act should be amended to cover people aged 16 and 17 who live together.⁴⁰ The Commissioner for Children and Young People had previously submitted that it was anomalous that young people aged 16 or 17 could marry and therefore have access to the property division provisions of the Family Law Act 1975 (Cth) (“the FLA”), yet had no legal remedy under the PRA if they lived together without marrying. She had also submitted that there might be a greater need to protect a young person cohabiting with an older person, who would assumedly be in a weaker bargaining position.⁴¹

2.33 New South Wales Young Lawyers submitted that, ideally, people should have access to the PRA and its remedies whenever they need them. However, given that rights in respect of property division under Part 3 of the Act only arise once the parties have cohabited for two years, the PRA effectively covers people in domestic relationships who have cohabited since they were 16 years of age.⁴² In other words, by the time the two-year cohabitation period is satisfied, the parties are likely to be 18 years old. The New South Wales Law Society made a similar submission and argued that the provision was adequate.⁴³

2.34 The Commission agrees with these submissions and does not consider it necessary to amend the current age requirement in the PRA. However, the Commission does believe that young people aged between 16 and 17 years should be able to register their relationship with authorisation, just as they may marry an adult with the authorisation of a judge or magistrate⁴⁴ and thus have access to the provisions of the FLA.⁴⁵

2.35 The PRA imposes a third threshold requirement, framed in the negative, that parties to a de facto relationship not be married to each other or otherwise related. Does this requirement continue to be appropriate, in light of the PRA’s anticipated focus on same sex couples?

2.36 The first requirement, relating to marriage, is not relevant in the context of same sex de facto couples. That is, it is unnecessary to stipulate that parties to a same sex de facto relationship cannot be married to each other because, under Commonwealth law, people of the same sex cannot marry each other.⁴⁶ Nevertheless, it is worthwhile to retain this requirement to ensure the PRA’s constitutional validity,⁴⁷ and in view of any possibility (however remote at this stage) that same sex marriages may one day be legalised in Australia. Moreover, as the Commission noted in paragraph 1.33, it is possible (at least in theory) that opposite sex de facto couples will continue to be brought within the scope of the PRA, after the referral of powers, for adjustment orders not relating to the breakdown of their relationship, or if they wish to register their relationship pursuant to the Commission’s Recommendation 15. For these reasons, the stipulation as to marriage should remain.

2.37 As for the second requirement, is it desirable to restrict legal recognition of (same sex) de facto couples to couples that are not “related to each other”? According to s 5A of the PRA, persons are “related” if:

2.39 In addition to these threshold criteria, s 4(2) of the PRA sets out a list of factors that serve as indicia of the existence of a de facto relationship. This list is not exhaustive or conclusive proof of a de facto relationship, but serves as a guide only.⁴⁹

2.40 When it first came into operation, the De Facto Relationships Act 1984 (NSW), as it was then known, provided no guidance to the Court in terms of which factors it should take into account when determining whether or not a de facto relationship existed between the parties. In Roy v Sturgeon, Justice Powell enunciated a list of factors that he considered relevant in determining this preliminary issue.⁵⁰ This list was inserted into the legislation, in 1999.⁵¹ Section 4(2) now provides that:

2.42 Justice Powell had also considered the “procreation of children” as an additional factor to be considered by the Court when determining whether or not a de facto relationship existed. Although this factor is not included in the PRA, the list is otherwise substantially the same as that developed over time by New South Wales courts with reference to opposite sex de facto couples. Jenni Millbank and Kathy Sant have argued that:

2.44 Importantly, s 4(3) of the PRA expressly provides that the s 4(2) factors are merely a guide, and that the absence of one or more of them does not necessarily mean that the Court should find there was no de facto relationship between the parties. This may explain a softening in the courts’ approach.⁵⁸ In another more recent Family Provision Act case, for example, when faced with conflicting testimony about the commitment of the parties to each other, and the way others viewed their relationship, the Court commented:

2.47 In its 1999 report, the New South Wales Legislative Council’s Standing Committee on Social Issues (“the Social Issues Committee”) expressed a preference for the alternative and more expansive list of indicators contained in the De Facto Relationships Amendment Bill 1998.⁶³ This Bill provided that, in determining the existence of a de facto or domestic relationship, the Court should have regard to all the circumstances of the relationship, including but not limited to:

2.49 None of the submissions that addressed this issue made any criticism of the list of factors in s 4(2). On the contrary, it was generally submitted that the list was both useful and appropriate, but should remain expressly inclusive.⁶⁶ New South Wales Young Lawyers submitted that, as the Court has significant discretion in determining whether a domestic relationship exists, on a case-by-case basis, there was no need to extend or elaborate the existing factors.⁶⁷

2.50 The Commission does not consider it necessary to adopt the list of factors provided in the De Facto Relationships Amendment Bill 1998. In large part, they merely elaborate what is already contained in s 4(2). Further, it is evident from the case law that New South Wales courts already take those factors into account when exercising their substantial discretion under s 4(2) to determine the threshold issue of whether a de facto relationship exists.

2.51 The current list of indicia is adequate and it is appropriate and desirable that the list remains inclusive. This simultaneously provides a guide for the Court and allows it maximum flexibility to recognise the diverse forms of relationships that people live in today. For example, that the parties did not always and continuously live in the same house is but one of the factors that a court can take into account, but is by no means in itself conclusive of whether or not a de facto relationship exists or existed between them.⁶⁸ A court will also examine, among other things, the nature of the parties’ commitment to each other, how they presented their relationship to family and friends, the intermingling of their financial affairs and the extent to which they were emotionally interdependent. Of course, some factors, such as the care and support of children, may not feature as prominently in same sex relationships as in opposite sex ones.

2.52 There is, however, one matter in the indicia in s 4(2) that requires amendment in its application to same sex relationships. People in same sex de facto relationships might not hold themselves out publicly as a couple because of community prejudice. Although a court can currently use its discretion to take the incidence of homophobia into account, and discount the fact that this particular factor is not present, it is appropriate to amend s 4(2)(i) to make this plain. The language of the PRA itself should make it clear that, when considering the reputation and public aspects of a relationship, the Court should be mindful of the social context in which a same sex de facto relationship exists. If the parties did not hold themselves out publicly as a couple, the Court should take into account the possible reasons for this, and make concessions if the parties feared discrimination, and ostracism from their families and friends.

2.53 In Chapter 4, the Commission recommends the implementation of a system of registration for people in domestic relationships in New South Wales akin to that which has been implemented in Tasmania.⁶⁹ If the system is implemented, proof of registration of a de facto relationship⁷⁰ will constitute proof of the relationship itself. The PRA should be amended to reflect this.

2.54 In DP 44, the Commission raised the issue of whether a definition of de facto partner, based on the PRA definition of de facto relationship, should be applied consistently across all relevant legislation in New South Wales.⁷¹ This issue was raised because, at that time, there was substantial legislative inconsistency in the definition of “de facto partner” or “spouse”. Various definitions were used in legislation and the range of definitions included several that were limited to opposite sex partners.⁷² Similarly, various terms were used to refer to de facto partners, including de facto spouse, same sex partner and partner of the same sex.

2.55 In recognition of this inconsistency, the Social Issues Committee had recommended in December 1999 that the government examine all New South Wales legislation “to determine whether amendments need to be made to ensure a consistent application of the new definition of de facto” in the PRA.⁷³ The Committee had also recommended that “a general drafting instruction be issued to the Parliamentary Counsel’s Office that in all new legislation any reference to a ‘de facto relationship’ is to be consistent with the definition used in the [PRA]”.⁷⁴

2.56 The Commission’s preliminary view was that there was no policy reason why all legislation that refers to de facto partner or to some other equivalent term should not define that term by reference to the PRA’s definition of a de facto relationship. Similarly, where the term spouse is used, the Commission’s initial view was that the definition should include a de facto partner, as defined by reference to the PRA.⁷⁵

2.57 Consistent application of a PRA-based definition of de facto partner was supported by the Women’s Legal Resources Centre, the Anti-Discrimination Board, the Gay and Lesbian Rights Lobby, New South Wales Young Lawyers, the Anglican Diocese of Sydney,⁷⁶ Lesbian and Gay Solidarity and the Victorian Bar. The Equity Division of the Supreme Court submitted that a uniform definition should not be adopted without individually identifying the legislation where the definition is to be applied and working out the consequences of adoption of the definition for each piece of legislation.⁷⁷

2.58 The legislative inconsistency that existed at the time of the release of DP 44 was partially remedied by the enactment of the Miscellaneous Acts Amendment (Relationships) Act 2002 (NSW), which amended over 20 statutes to include same sex couples in the relevant definitions. While this was a significant development, definitions of de facto partner, spouse or de facto relationship that exclude same sex de facto partners were left in four statutes.⁷⁸ Since the 2002 reforms, exclusionary terminology has been included in a further three statutes.⁷⁹

2.59 Two of the statutes that were omitted from the 2002 reforms relate to superannuation. In the Coal and Oil Shale Mine Workers (Superannuation) Act 1941 (NSW), clause 27(9) of Schedule 2 defines “spouse” as including “any person of the opposite sex with whom the mine worker is living as the mine worker’s spouse on a bona fide domestic basis”. The definition relates to eligibility for a pension under the COALSUPER Rules in circumstances where a “spouse” has been deserted or left without support by a mine worker and the “spouse” has taken maintenance proceedings under the FLA. This particular section of the Act applies only to members whose services were terminated before March 1978. The scheme to which this section relates was closed to new members in 1994. As no new pensions are expected to be granted under this section, it was not considered necessary to amend the definition.⁸⁰ There is little reason to amend the definition as part of this exercise.

2.60 Section 5 of the Public Authorities Superannuation Act 1985 (NSW) only includes opposite sex de facto partners within its definition of “spouse”.⁸¹ The definition of “spouse” is relevant to the payment of a benefit where the contributor dies during employment.⁸² However, as the Public Authorities Superannuation Scheme is now closed and a death benefit is not payable under the Act unless the deceased contributor died prior to 1 April 1988, the definition has no ongoing effect.⁸³

2.61 The Adoption Act 2000 (NSW) and the Local Government Act 1993 (NSW) are the other two statutes in which exclusionary definitions were retained in 2002. In the Adoption Act 2000, a “couple” is defined as meaning a man and a woman who are married or are in a de facto relationship.⁸⁴ The exclusionary nature of this definition is reinforced by that of “de facto relationship”, which again refers to a relationship between a man and a woman.⁸⁵ The impact of these definitions is that same sex couples are ineligible to adopt a child jointly.⁸⁶ In its 1997 Review of the Adoption of Children Act 1965 (NSW), the Commission recommended that the law in this area be changed and that same sex couples be eligible to adopt a child as a couple.⁸⁷ We consider that the policy justifications for that recommendation remain compelling.⁸⁸

2.62 The Local Government Act 1993 definition of “de facto partner” is expressly confined to a partner of the opposite sex.⁸⁹ This definition relates to duties of disclosure of a pecuniary interest⁹⁰ and, if amended, would oblige councillors and other certain individuals to disclose the identity of their same sex de facto partner in specified circumstances. The definition also relates to a prohibition on the misuse of information and the improper use of influence⁹¹ but amendment of those provisions would not entail public disclosure of an individual’s same sex relationship.

2.63 The core concern of the disclosure provisions in the Local Government Act 1993 is to ensure that councillors and others act honestly and in the public interest.⁹² These objectives are an important element of establishing public accountability and confidence in local government.⁹³ In the view of the Commission, there is no reason that the pecuniary interests of a person’s same sex de facto partner are any less relevant to the purpose of the provisions than the interests of an opposite sex de facto partner. The prohibition on the misuse of information and the improper use of influence relates to similar objectives and, again, the limited definition of de facto partner cannot be justified by reference to the legislative purpose. Further, the exclusion of same sex partners leaves a significant gap in the protection of the public interest that the relevant provisions seek to ensure.

2.64 A possible justification for retaining an exclusionary definition in the Local Government Act 1993 is that under New South Wales law, a person can legitimately be discriminated against on the basis that he or she is in a same sex de facto relationship.⁹⁴ While the Anti-Discrimination Act 1977 (NSW) prohibits discrimination on the grounds of marital status, the definition of marital status only includes being in an opposite sex de facto relationship.⁹⁵ These concerns about discrimination have not, however, led to exclusionary definitions being retained in other legislation that confers duties of disclosure. For example, under the Aboriginal Land Rights Act 1983 (NSW), if a person’s de facto partner⁹⁶ has a pecuniary interest in a matter, the person must disclose the nature of that interest if he or she is attending an Aboriginal Land Council meeting where the matter is being considered.⁹⁷ Any such disclosure must then be recorded in the minutes of the meeting.⁹⁸ Similarly, the Independent Commission Against Corruption Regulation 2005 (NSW) provides that the Commissioner (for the Independent Commission Against Corruption)may require an officer of the Commission, or an applicant for a position as an officer, to provide personal particulars about his or her spouse.⁹⁹ Spouse is defined as including the other party to a de facto relationship within the meaning of the PRA.¹⁰⁰ In addition, all officers of the Commission must provide a statement of their financial interests, including any financial interests of their spouse.¹⁰¹

2.65 While the Commission recognises that an inclusive definition would expose individuals to potential discrimination on the basis of their being in a same sex de facto relationship, as do definitions that currently include same sex de facto partners, the appropriate response to this concern is to provide legal protection rather than to retain an exclusionary definition. Accordingly, the Commission reiterates the recommendation in its 1999 Review of the Anti-Discrimination Act 1977 (NSW) that “marital status” should be renamed “domestic status” and that the definition of domestic status should include being in a domestic relationship within the meaning of the PRA.¹⁰²

2.66 Since the 2002 reforms, exclusionary terminology has been included in the Property, Stock and Business Agents Act 2002 (NSW), the Commercial Agents and Private Inquiry Agents Act 2004 (NSW) and the Home Building Amendment Act 2004 (NSW). In these three statutes, there is reference to a “de facto partner who is living or has lived with [a person] as his or her wife or husband on a bona fide domestic basis although not married to him or her”. This phrase specifies those who are classified as an “associate” or “close associate” of a person.

2.67 Under the Property, Stock and Business Agents Act 2002 and the Commercial Agents and Private Inquiry Agents Act 2004, classification as an associate is relevant to the provisions concerning failure to account¹⁰³ and receivership. In both Acts, for example, a failure to account by a licensee includes a failure that arises from an act or omission of a licensee’s associate¹⁰⁴ and the property of a licensee’s associate may be declared to be receivable property.¹⁰⁵ The Commission can see no reason why a same sex de facto partner should not be recognised as an associate of a licensee for the purposes of these and other similar provisions. Indeed, it is inconsistent with the consumer and public protection objectives of the Acts¹⁰⁶ to limit the reach of the provisions to opposite sex de facto partners and thereby leave a gap in the protection offered.¹⁰⁷

2.68 Similar provisions dealing with failure to account and receivership are found in the Conveyancers Licensing Act 2003 (NSW).¹⁰⁸ However, in that Act, an “associate” includes a same sex de facto partner.¹⁰⁹ The presence of inclusive terminology in the Conveyancers Licensing Act 2003, accompanied by the lack of a policy justification for excluding same sex de facto partners in the other Acts, indicates that pre-PRA terminology may have been inadvertently used in the drafting of the Property, Stock and Business Agents Act 2002 and then repeated in the Commercial Agents and Private Inquiry Agents Act 2004. This view gains support from the comment made during the Second Reading of the Commercial Agents and Private Inquiry Agents Bill that “[t]he provisions contained in schedule 2 … are based on similar provisions in the Property, Stock and Business Agents Act 2002”.¹¹⁰ The Home Building Amendment Act 2004 amends the licensing provisions of the Home Building Act 1989 (NSW) to provide that an application for a licence may be rejected on grounds involving a close associate of the applicant.¹¹¹ In her Second Reading Speech, the Minister for Fair Trading stated that these new provisions are intended “to more effectively prevent inappropriate persons from being involved in the industry”.¹¹² It is again inconsistent with this legislative objective to omit same sex de facto partners from the list of potential close associates. Given that the terminology used in this Act is identical to that used in relation to “associates” in the Property, Stock and Business Agents Act 2002 and the Commercial Agents and Private Inquiry Agents Act 2004, it is possible that this is a further instance of inadvertent exclusion.

2.69 The Commission can see no compelling policy reason why the Local Government Act 1993, Adoption Act 2000, Property, Stock and Business Agents Act 2002, Commercial Agents and Private Inquiry Agents Act 2004 and Home Building Amendment Act 2004 should not be amended to include same sex de facto partners or relationships within the relevant definitions. All of the statutes apply to opposite sex de facto partners and therefore already accommodate de facto relationships within their policy objectives. There is no feature of the legislation that justifies differentiating between opposite sex and same sex de facto relationships. It is the Commission’s view that in the absence of a policy justification for maintaining the current statutory position, considerations of equality and statutory consistency provide a compelling basis for amendment. The process that was commenced by the 1999¹¹³ and 2002 amendments¹¹⁴ should now be completed.

2.70 While the 2002 amendments remedied a significant amount of substantive legislative inconsistency, they did not address descriptive and definitional inconsistencies in legislation that already included same sex de facto relationships. Accordingly, de facto partners are still referred to by a range of terms including de facto spouse¹¹⁵ or, in the case of same sex de facto partners, partner of the same sex¹¹⁶ or same sex partner.¹¹⁷ Similarly, differing definitions of de facto partner and spouse still exist, some of which do not refer to the PRA.¹¹⁸ The Commission considers that existing legislation should be amended to achieve consistency in the terminology and definitions that are used in relation to spousal and de facto relationships. As regards new legislation, the Commission considers that consistent PRA-referenced definitions of de facto relationship, de facto partner and spouse should be applied.

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1. See Property (Relationships) Act 1984 (NSW) (“the PRA”) s 5(1). Where the term “domestic relationship” as defined in the PRA is used in other New South Wales statutes, reference is being made to those in de facto relationships as well as those in close personal relationships: see, for example, Family Provision Act 1982 (NSW); Bail Act 1978 (NSW); and Duties Act 1997 (NSW). Where the intention is to extend the provisions of the particular statute only to people in intimate couple relationships, the term “de facto relationship” or “de facto partner” is used: see, for example, Compensation to Relatives Act 1987 (NSW); Motor Accidents Act 1988 (NSW); and Human Tissue Act 1983 (NSW).

3. Prior to 1999, s 3 of the De Facto Relationships Act 1984 (NSW) defined a “de facto relationship” as a “relationship between de facto partners, being the relationship of living or having lived together as husband and wife …”. The Act was amended and renamed in 1999, and a “de facto relationship” is now defined in gender neutral terms, as two “adult persons” who live together as a couple: see PRA s 4(1), as inserted by the Property (Relationships) Legislation Amendment Act 1999 Sch 1[9]. See Chapter 1 at para 1.9-1.11.

5. See PRA s 47, which refers to a party who seeks an order under Part 3 (which does not apply to couples that have not lived together for less than two years).

6. There are two exceptions that obviate the need to meet the two-year requirement. First, the birth of a child of the parties creates an automatic entitlement to bring a claim for property adjustment and maintenance. Secondly, a court may also allow a claim for property adjustment to be heard notwithstanding the fact that the parties lived together for less than two years where the applicant can show that he or she has made a substantial contribution or is taking care of a child of the respondent and the court is satisfied that the applicant would suffer serious injustice if the claim were not heard: PRA s 17(2). See Chapter 6.

7. See NSW Law Reform Commission, De Facto Relationships (Report 36, 1983) at para 9.5-9.6, and 17.4-17.12. See Social Security Act 1947 (Cth) (now repealed) s 83AAA(1).

8. For example, Przewoznik v Scott [2005] NSWSC 74 at para 15 per McDougall J; Richardson v Kidd [2002] NSWSC 306 at para 21-24 per Master Macready.

12. 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 207-208.

18. The Bride Wore Pink recommended legal recognition of a broader category of “significant personal relationships” which did not require (but could include) a sexual relationship or cohabitation: see Lesbian and Gay Legal Rights Service, The Bride Wore Pink: Legal Recognition of Our Relationships: A Discussion Paper (2nd ed, Sydney, 1994) at 2. See also 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 207-208.

20. See Significant Personal Relationships Bill 1997 (NSW) cl 39(1). As in s 17 of the PRA, this proposed duration requirement was subject to exceptions: see Significant Personal Relationships Bill 1997 (NSW) cl 39(2).

21. See De Facto Relationships Act 1991 (NT) s 3A(1); Relationships Act 2003 (Tas) s 4(1)(a); Domestic Relationships Act 1994 (ACT) s 3. Note that s 3 of the ACT Act defines the term, “domestic relationship” to include a domestic partnership, which is in turn defined in s 169(2) of the Legislation Act 2001 (ACT) as a relationship between two persons “living together” as a couple. It seems clear that the term “living together” in this context does not necessarily imply cohabitation, since s 3(2) of the Domestic Relationships Act expressly provides that people in a domestic relationship (including, by reason of s 3(1), a domestic partnership) do not need to cohabit.

22. Domestic Relationships Act 1994 (ACT) s 12(1); Relationships Act 2003 (Tas) s 37(1); De Facto Relationships Act 1991 (NT) s 16(1).

23. SA, Attorney General’s Department, Removing Legislative Discrimination Against Same Sex Couples (Discussion Paper, 2003). South Australia is the only State or Territory in Australia that confines its financial adjustment regime to opposite sex de facto couples: see De Facto Relationships Act 1996 (SA) s 3.

24. SA, Attorney General’s Department, Removing Legislative Discrimination Against Same Sex Couples (Discussion Paper, 2003) at 10.

25. Women’s Legal Resources Centre, Submission at 5-6; Gay and Lesbian Rights Lobby Inc, Interim submission at 6-7, Final submission at 5; Anti-Discrimination Board of NSW, Submission at 2, 7-8; NSW Young Lawyers, Submission at 4; Lesbian and Gay Solidarity, Submission at 2.

26. Women’s Legal Resources Centre, Submission at 5-6; Anti-Discrimination Board of NSW, Submission at 7-8.

27. Women’s Legal Resources Centre, Submission at 5-6; Anti-Discrimination Board of NSW, Submission at 7-8.

29. Victorian Bar, Submission at para 12; Equity Division of the Supreme Court of NSW, Submission at para 49; V Palfreeman, Submission at 2.

38. For example, the Insurance Act 1902 (NSW) and the Victims Compensation Act 1996 (NSW) already contain a requirement that de facto partners must have lived together for two years before they are entitled to an insurance or compensation payment under the respective legislation.

41. NSW Commission for Children and Young People, National Children’s and Youth Law Centre, Submission at 5-6.

42. NSW Young Lawyers, Submission at 8; see also Law Society of NSW, Submission at 6.

47. The power to make laws in respect of marriage rests with the Commonwealth: Commonwealth Constitution s 51(xxi).

48. See s 4, 7(1)(c). However, the Queensland legislation, which defines a de facto relationship to include a same sex relationship, prohibits relationships between brother and sister only: see Property Law Act 1974 (Qld) s 260; Acts Interpretation Act 1954 (Qld) s 32DA(1), (5)(b) in conjunction with the Marriage Act 1961 (Cth) s 23B(2)(b). The Domestic Relationships Act 1994 (ACT) s 3, in conjunction with the Legislation Act 2001 (ACT) s 169(2), makes no reference to family relationships.

50. Roy v Sturgeon (1986) 11 NSWLR 454; DFC 95-031. Justice Powell also included procreation of children as a factor to be included in the assessment.

51. See Property (Relationships) Legislation Amendment Act 1999 (NSW) Sch 1[9].

52. See Property Law Act 1958 (Vic) s 275(2); Relationships Act 2003 (Tas) s 4(3); Domestic Relationships Act 1994 (ACT) s 3(1), in conjunction with Legislation Act 2001 (ACT) s 169(2); Property Law Act 1974 (Qld) s 260(1), in conjunction with Acts Interpretation Act 1954 (Qld) s 32DA(2); Interpretation Act 1984 (WA) s 13A(2).

53. Relationships Act 2003 (Tas) Part 2. See discussion of the Tasmanian registration system in Chapter 4.

54. Relationships Act 2003 (Tas) s 4(2). This also applies to people in caring relationships: s 5(4).

55. 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 191.

56. 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 191-192.

57. Light v Anderson (1992) DFC 95-120. See also Dorman v Beddowes (NSW Court of Appeal, 40285/1996, 14 April 1997, unreported).

58. 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 192.

61. Przewoznik v Scott [2005] NSWSC 74 at para 15. In Martin v Brustolin [2004] NSWSC 1028, the deceased and the plaintiff had had a relationship lasting 31 years but only lived together for 5 or 6 of those years. The Court found that there was a de facto relationship for only the period that they actually lived together. Compare Dunk v Public Trustee [2003] NSWSC 37 where, although the plaintiff and the deceased did not live together full time, she was found to have been in a de facto relationship with the deceased, a relationship that continued for 32 years.

63. 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 8 at 53. The Bill had been introduced by the Hon Elizabeth Kirkby (Australian Democrats) and was referred to the Social Issues Committee. It lapsed when Parliament was prorogued in 1999.

65. See Migration Regulations 1994 (Cth) reg 1.09A (indicia for determining an “interdependent relationship”).

66. Victorian Bar, Submission at para 51; Law Society of NSW, Submission at 6.

67. NSW Young Lawyers, Submission at 8. See also Law Society of NSW, Submission at 6; Victorian Bar, Submission at para 51.

73. 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 12 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 Recommendation 11 at 67.

74. NSW Legislative Council Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Inquiry into De Facto Relationships Legislation) (Report 20, Parliamentary Paper 127, 1999) Recommendation 13 at 67.

76. With the proviso that the term “spouse” is not used to refer to de facto partners: Anglican Diocese of Sydney, Submission at 3.

78. Coal and Oil Shale Mine Workers (Superannuation) Act 1941 (NSW), Public Authorities Superannuation Act 1985 (NSW), Local Government Act 1993 (NSW) and Adoption Act 2000 (NSW). Statutory discrimination against same sex couples still remains in other areas. For example, the definition of “parental leave” in s 55 of the Industrial Relations Act 1996 (NSW) excludes a woman from entitlement to unpaid parental leave where her same sex partner gives birth to a child. The Human Rights and Equal Opportunity Commission recently released a discussion paper, which noted the variations in State and Territory laws in terms of inclusion of same sex couples within provisions for financial and work-related benefits and entitlements. The Paper invited submissions giving information and examples of State and Territory laws that discriminate against same sex couples in the context of financial and work-related benefits and entitlements: see 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, April 2006) at 25.

79. Commercial Agents and Private Inquiry Agents Act 2004 (NSW), Home Building Amendment Act 2004 (NSW) and Property, Stock and Business Agents Act 2002 (NSW). See below at para 2.66-2.69.

80. Information obtained from an officer of the Public Employment Office, NSW Premier’s Department.

81. The Act was amended in 2003 by the Superannuation Legislation Amendment (Family Law) Act 2003 (NSW) to include same sex de facto partners for certain purposes in Schedules 6 and 7 but the definition of spouse remained exclusionary.

82. Public Authorities Superannuation Act 1985 (NSW) s 26, 27 and 32, Sch 6 and Sch 7. The definition also relates to the payment of a pension but same sex de facto partners are recognised in that context.

87. NSW Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW) (Report 81, 1997) at Recommendation 58 and para 6.119.

90. Local Government Act 1993 (NSW) s 443 and 454. See also more generally Part 2 of the Local Government Act 1993 (NSW).

92. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 27 November 1992 at 10423.

93. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 27 November 1992 at 10424.

94. Unless the discrimination is also discrimination on the grounds of the individual’s sexual orientation: Anti-Discrimination Act 1977 (NSW) s 49ZF – 49ZR.

101. Independent Commission Against Corruption Regulation 2005 (NSW) cl 10. For further examples of legislation that confers duties of disclosure, see Day Procedure Centres Regulation 1996 (NSW) cl 16, 17 and Greyhound and Harness Racing Administration Act 2004 (NSW) Sch 1[10] and [11].

102. NSW Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW) (Report 92, 1999) Recommendations 32 and 33. The original recommendation stated that domestic status should include the status of being “in cohabitation with another person in a domestic relationship other than marriage”. However, as we now advocate the use of consistent terminology, we have modified the recommendation to refer to a “domestic relationship within the meaning of the PRA”.

104. Property, Stock and Business Agents Act 2002 (NSW) s 125; Commercial Agents and Private Inquiry Agents Act 2004 (NSW) Sch 2[28].

105. Property, Stock and Business Agents Act 2002 (NSW) s 139; Commercial Agents and Private Inquiry Agents Act 2004 (NSW) Sch 2[30].

106. See NSW, Parliamentary Debates (Hansard) Legislative Assembly, 6 December 2001, at 19862 regarding the Property, Stock and Business Agents Act 2002 (NSW) and NSW, Parliamentary Debates (Hansard) Legislative Assembly, 3 June 2004, at 9639 regarding the Commercial Agents and Private Inquiry Agents Act 2004 (NSW).

107. This is particularly so in relation to failure to account. In his Second Reading Speech on the Property, Stock and Business Agents Bill, the Minister for Fair Trading observed that “[d]efalcation can lead to the wholesale loss of lifetime savings and a litany of social ills that attach to that”: NSW, Parliamentary Debates (Hansard) Legislative Assembly, 6 December 2001, at 19862.

110. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 3 June 2004, at 9636.

111. See Home Building Act 1989 (NSW) s 20(6), 32B(5) and 40, as amended by Home Building Amendment Act 2004 (NSW) Sch 2[6], [14], [19].

112. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 10 November 2004, at 12535.

118. See, for example, s 3(1) of the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) and s 4(4) of the Child Protection (Prohibited Employment) Act 1998 (NSW).