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

10.1 Partner maintenance can be awarded in the context of marriage under the Family Law Act 1975 (Cth) (“the FLA”) and in the context of domestic relationships under the Property (Relationships) Act 1984 (NSW) (“the PRA”). But the approach to maintenance under the FLA starts from a different premise to that in the PRA. Under the FLA there is a general obligation on married parties, where their spouse is unable to maintain him or herself adequately, to maintain each other to the extent to which they are reasonably able to do so,¹ while, under the PRA, a party to a domestic relationship is not liable to maintain the other, nor to claim maintenance from the other.² The differing starting points of the legislation do not mean much in practice since each Act immediately qualifies its general premise: the FLA by limiting the general obligation to specified circumstances; the PRA by creating exceptional circumstances in which maintenance is claimable. However, consistent with their differing premises, the circumstances in which a party to a marriage is liable to maintain the other party are wider under the FLA than the exceptional circumstances in which a party to a domestic relationship is liable to maintain the other party under the PRA.

10.2 Under the FLA a party to a marriage who is reasonably able to do so becomes liable to maintain the other party where that other party cannot support him or herself adequately because he or she has the care and control of at least one child of the marriage who has not attained 18 years of age; because he or she is unable to engage in appropriate gainful employment by reason of age or physical or mental incapacity; or for any other adequate reason.³ In contrast, s 27 of the PRA provides that, before awarding maintenance, the Court must be satisfied that the applicant is unable to support him or herself adequately because:

10.4 In de facto relationship cases, the justification for maintenance must, then, be sought elsewhere. The PRA finds that justification in concepts of “custodial” maintenance (where applicants have the care of a child of the parties or a child of the respondent) and “rehabilitative maintenance” (where applicants’ earning capacity has been adversely affected by the circumstances of the relationship, and a maintenance order has the ability to increase their earning capacity through training or education).⁷ While the FLA also adopts, more broadly, the custodial philosophy of maintenance,⁸ its endorsement of maintenance in cases where applicants are unable to support themselves adequately “by reason of age or physical or mental incapacity for appropriate gainful employment”⁹ goes beyond the PRA’s concept of rehabilitation since the availability of maintenance is not restricted to incapacities that can be attributed to the relationship. Further, the FLA’s authorisation of maintenance “for any other adequate reason”¹⁰ is not expressly tied to any particular theory of maintenance. And a number of general theories of maintenance are possible, ranging from approaches based strictly on the needs of the applicant, through custodial and rehabilitative approaches, to those that openly seek to redistribute the wealth of the parties on separation against the social context in which the relationship existed.¹¹

10.5 In 1983 the Commission thought that the differences between marriage and a de facto relationship dicated a much narrower power to award maintenance in de facto relationship cases than in marriage cases. We wrote that:

10.7 The legal context in which we revisit the issue of maintenance in 2006 differs in at least two significant respects from that which existed immediately after the implementation of our 1983 recommendations in the De Facto Relationships Act 1984 (NSW). First, the PRA’s maintenance regime now applies not only to de facto relationships but also to close personal relationships. To such relationships, the custodial basis of maintenance has no relevance. Nor, generally, does a compensatory basis, since there is no foundation for a presumption of lifelong commitment justifying continuing support. As a generalisation, maintenance would seem capable of serving, at most, a rehabilitative function in such cases by providing, for example, carers who are unable to support themselves adequately by reason of having given up paid employment to look after an elderly relative with the means of now increasing their earning capacity through training or education.

10.8 Secondly, we are now faced with the possibility that the substance of the FLA maintenance regime will in future apply to opposite sex de facto relationships,¹⁴ as is now the case in Western Australia.¹⁵ This possibility raises, in a more focused form, the option, raised in DP 44, of reforming the law of partner maintenance in this State by mirroring the approach of the FLA in the PRA,¹⁶ an option supported in some submissions,¹⁷ but rejected in others.¹⁸ If this possibility eventuates, the justification of continuing to have a separate regime under the PRA in respect of same sex relationships will have to be found either in shortcomings in the maintenance provisions of the FLA or in the unsuitability of applying those provisions to gay and lesbian relationships. Such unsuitability could be found in characteristics of same sex relationships that distinguish them from opposite sex de facto relationships, and in the inability of the maintenance provisions of the FLA to accommodate the distinctions. Absent such distinguishing factors, however, the argument for treating all de facto relationships equally would be compelling and weigh heavily in favour of the assimilation of the PRA’s maintenance regime with that of the FLA, assuming that the FLA regime is otherwise acceptable.

10.9 Against this background, this Chapter investigates both the need for, and the reach of, maintenance under the PRA in its application to gay and lesbian relationships and close personal relationships. There are four live issues:

10.11 Maintenance is one of two financial adjustment orders that a court can make under Part 3 of the PRA. The other is a property adjustment order, which is considered in Chapters 7 and 8. The ability of the courts to make property adjustment orders under s 20 raises the issue whether there is a need for a separate power to award maintenance under s 27. Two closely related questions are embedded in this issue: does maintenance have an independent function to property adjustment; and, even if it does, does it have to be considered independently of the property adjustment process?

10.12 Under the PRA as it currently stands, the answer to the first question is clearly in the affirmative. Property adjustment and maintenance orders simply serve different purposes. A property adjustment order seeks to effect a just and equitable alteration of the interests with respect to the property of the parties, having regard to their contributions to the property, to the financial resources or to the welfare of each other or their family. In contrast, a maintenance order seeks to make provision for a party to the relationship who is unable to support him or herself either because he or she has care and control of a specified child or because his or her earning capacity has been adversely affected by the relationship and that capacity can now, reasonably, be enhanced by particular training or education. It follows that in so far as a property adjustment order puts the applicant in a position to support her or himself adequately, an award of maintenance cannot be made.¹⁹

10.13 Apart from this, there is little room for the direct interaction of property adjustment and maintenance orders. At most, there is a danger of “double dipping”, that is, of taking the same factor into account in determining a maintenance order that has already been taken into account in the determination of a property adjustment order. For example, while the applicant’s desire to remain at home in a parenting role is a factor relevant to the determination of “custodial maintenance” under s 27(1)(a) of the PRA,²⁰ it would be inappropriate to take it into account if it had already influenced the determination of a property adjustment order or proposed order.²¹ However, because property adjustment orders under s 20 have their focus on past contributions, while maintenance under s 27 is only available in closely defined custodial and rehabilitative settings, double dipping should arise infrequently, if at all.

10.14 This will change if the recommendations in this Report are implemented. The Commission has already recommended that the property adjustment provisions of the PRA should be altered to align with those of the FLA,²² a recommendation that paves the way for some consideration of future needs in property adjustment proceedings themselves. The existing custodial and rehabilitative bases of maintenance in the PRA look to the need for future support, and, while these provisions are limited, our recommendations would widen them,²³ raising the real prospect that claims for loss of support in the future could straddle property adjustment and maintenance claims. This raises the question whether or not maintenance orders are necessary at all once property adjustment orders are available in circumstances that essentially mirror those in the FLA.

10.15 As already noted, the FLA continues, to provide for maintenance orders, and the jurisprudence of the Family Court acknowledges a continuing need for them.²⁴ The most important reason is found in cases in which there are few property assets for division, but one spouse has a continuing need for support and the other has the capacity to provide that support.²⁵ Take this example: a wife has, for the period of the parties’ marriage, devoted herself to the care and rearing of their family, losing the professional skills she had at the beginning of the marriage. On the breakdown of the marriage, she has significant responsibilities in support of herself and the children. In contrast, her husband has, during the marriage, developed his earning capacity to a high and ongoing level. On the breakdown of the marriage, the parties have few assets that can be made the subject of an adjustment order. In the course of dealing with just such a case (where the claim for maintenance was, however, abandoned), the Full Court of the Family Court said:

10.17 There are at least two other circumstances in which there is a need for maintenance that cannot be met by a property adjustment order. The first is where the circumstances of the parties or of the case – for example, particular uncertainties in the future – suggest the necessity for periodic maintenance variable, at the instance of either party, in the light of changing conditions.²⁸ Unlike a periodic maintenance order, other maintenance orders and property adjustment orders are only variable in restricted circumstances.²⁹ The second is where an interim maintenance order is made in favour of an applicant who is in need of immediate financial assistance but where it is not practicable in the circumstances to make an immediate determination of what (if any) order should be made under Part 3.³⁰

10.18 Of the respondents to the Commission’s Questionnaire on Same Sex Relationships and the Law, only 10% thought that partners should never have to pay maintenance to their ex-partners.³¹ This figure contrasts strongly with a 1999 study published by the Australian Institute of Family Studies (“AIFS”) that found that only a little over half of the sample (54%) believed that spousal support should ever be paid on divorce. Of the sample, 62% of divorced females were in favour of spousal support being paid, but only 43% of divorced males.³²

10.19 The majority support for spousal maintenance is not matched by its incidence in practice. The AIFS study found that spousal maintenance is awarded in less than 7% of divorces.³³ A further 10% of respondents said they had paid or received spousal maintenance through a larger share of the assets at the property division, meaning that 16% of respondents reported having paid or received some form of spousal maintenance. Behrens and Smyth comment:

10.21 There are no statistics concerning the incidence of maintenance in close personal relationships. Nor do we know anything about community attitudes to maintenance in the context of such relationships.

10.22 The Commission believes that maintenance has a place in the PRA and should continue to be available. Even if, in accordance with Recommendation 27 of this Report, property adjustment orders become available under the PRA under the same conditions as in the FLA, the circumstances in which maintenance may be needed are applicable, in principle, to de facto relationships, whether opposite or same sex. In particular, maintenance would seem to have a role in cases involving the breakdown of a relationship where a property adjustment order is of little help because there are few assets but a need in one party for support and a capacity in the other party to pay; as well as in cases calling for periodical and interim payments. The same is true in the case of close personal relationships. In all cases, the interaction of maintenance with property adjustment orders, particularly any attempt at double dipping, is appropriately dealt with in the discretion of the Court.

10.23 There is no empirical evidence to suggest any other approach in this context. Indeed, while a small sample, the respondents to the Commission’s Questionnaire showed strong support for the continued availability of maintenance on the breakdown of gay and lesbian relationships. The reasons for the contrast of this response and that obtained in the AIFS study of divorcees (where there was a bare majority in favour of the availability of maintenance on divorce) are not known. On the one hand, disparity between support for maintenance and its incidence in practice is more easily explicable in the context of gay and lesbian relationships where fear of homophobia may prevent recourse to dispute settlement procedures.³⁶ On the other hand, it may be conjectured that there is generally less desire for a “clean break” on the termination of gay and lesbian relationships than there is in the case of opposite sex relationships and so less of a dislike of maintenance with its connotations of ongoing support. Only 25% of respondents to the Questionnaire favoured lump sum over weekly or monthly maintenance as a means of promoting a “clean break” between the parties,³⁷ although some support for the “clean break” principle was expressed in the focus groups.³⁸

10.24 The Commission notes that 81% of respondents to our Questionnaire also believed that Courts should consider maintenance as part of the overall process of property division between partners on the breakdown of a relationship.³⁹ To the extent to which their legislative schemes permit circumstances relevant to the award of maintenance under the PRA to be taken into account in a property adjustment order, this is effectively the approach in Queensland⁴⁰ and Victoria⁴¹ where no provision is made for maintenance orders. In the Commission’s view separate provision should continue to be made for maintenance orders. While the implementation of our recommendations concerning property adjustment orders could allow the Courts to encompass within them matters relating to future support that are traditionally embodied in maintenance orders, we believe that their separate consideration and assessment not only ensures that they are addressed in practice, but also gives the Court the flexibility to issue orders that are needed in the changing circumstances of the cases mentioned in paragraphs 10.15-10.17.

10.25 The last section concluded that maintenance orders should be available in addition to property adjustment orders. This section addresses the circumstances in which maintenance orders should be made. Two overriding questions arise: first, whether the custodial and rehabilitative grounds for maintenance under the PRA are adequate as currently formulated; and, secondly, whether the custodial and rehabilitative grounds should, in any event, be expanded.

10.26 The custodial basis for maintenance enshrined in s 27(1)(a) of the PRA reflects the recommendations of the Commission in our 1983 Report that maintenance should be claimable where one party has the care and control of a child of the de facto relationship and is unable to support himself or herself by reason of child care responsibilities. We wrote:⁴²

10.28 Section 27(1)(a) of the PRA currently limits the availability of custodial maintenance by reference to the ages of the children in the care and control of the resident partner (under the age of 12 years or if the child has a physical or mental disability under the age of 16 years). The legislation of some Australian jurisdictions is to like effect.⁴³ In contrast the FLA prescribes 18 years and makes no reference to a different age with respect to children with a disability.⁴⁴

10.29 In their joint submission, the NSW Commissioner for Children and Young People and the National Children’s and Youth Law Centre drew attention to the different treatment of married and unmarried couples in relation to custodial maintenance orders. The submission referred to the cut-off ages in the PRA as “arbitrary”, pointing out that:

10.31 Respondents to more specific questions in the Commission’s Questionnaire on Same Sex Relationships and the Law were not in agreement about the age limits that should apply in the case of custodial maintenance. 23% of respondents thought maintenance should be paid until the youngest child starts school, while 6% thought it should be paid for up to 3 years regardless of how old any children of the relationship are.⁴⁷

10.32 The Commission is of the view that the cut-off ages of 12 and 16 in the PRA are arbitrary and cannot be justified. While rationales for these age limits can be found in the encouragement they provide custodial parents not to become reliant on maintenance, and in the likelihood of a custodial parent being able to return to the work force once a child is older, there is no guarantee that the latter is either desirable or possible, especially in the case of children with a disability. Because the circumstances are so variable, the Commission prefers that courts should have the power to make maintenance orders in any case in which applicants for maintenance are unable to support themselves because of their care or control of a minor child of the relationship.

10.33 The rehabilitative basis for maintenance enshrined in s 27(1)(b) of the PRA also reflects the recommendations of the Commission in our 1983 Report. We wrote that maintenance ought to be available where:⁴⁸

10.35 The Commission favours the FLA approach. We do not believe that the narrow rehabilitative approach that we adopted in 1983 remains appropriate. First, that approach does not sit easily with Recommendation 34 that maintenance should be awarded for “adequate reason” not specified in the legislation. Secondly, the approach puts a premium on the distinction between marriage and de facto relationships that may well be productive of injustice in cases where the parties have committed themselves, either at the beginning of their relationship or in the course of its development, to a partnership of unlimited duration. Take the following example:⁵³

10.37 The FLA and the Western Australian legislation allow for the award of maintenance where the applicant is unable to support him or herself adequately “for any other adequate reason”.⁵⁴ There is also a catch-all phrase in the recently enacted Tasmanian legislation, but it is narrower. It allows a court to make an order for maintenance where the applicant is unable to support himself or herself adequately because “of any other reason arising in whole or in part from the circumstances of the personal relationship”.⁵⁵ Unlike the FLA and Western Australian provisions, the Tasmanian legislation retains a rehabilitative focus even under its catch-all provision.

10.38 The main benefit of a catch-all provision is, of course, that it allows for unspecified circumstances to be considered in developing the court’s jurisdiction to award maintenance. The Commission is of the view that such a provision is called for in this context because we have little or no information about the need for, and operation of, maintenance in the context of the breakdown of same sex and close personal relationships, and, indeed, how such relationships differ in this respect from marriage and other heterosexual relationships. Consistent with our lack of knowledge, we think that such a provision should be kept as wide as possible. We, therefore, favour the FLA approach to that in the Tasmanian legislation. But we express no view about how such a provision should be interpreted – for example, whether it should generally be tied to a rehabilitative rationale or not.

10.39 In this regard we draw attention to a clear tension in the responses to our Questionnaire on Same Sex Relationships and the Law between a general sentiment in favour of treating all de facto relationships equally and the specific view that the grounds of maintenance should not be expanded beyond those currently available in the PRA. While 93% of respondents were of the view that, on the breakdown of a relationship, the law should treat same sex relationships in the same way as opposite sex de facto relationships, 80% thought partners should pay maintenance to an ex-partner in the circumstances currently set out in the PRA.⁵⁶ And 31% of respondents were more specific: in the absence of children of the relationship, maintenance should only be paid for up to three years where its purpose is retraining or study.

10.40 As in other contexts,⁵⁷ the tension is understandable since the approach of treating all de facto relationships equally runs the risk of overlooking significant differences between various types of relationships. In the context of maintenance, that tension is brought to the fore not only because maintenance is capable of serving a variety of purposes that, potentially, vary depending on the relationship in issue, but also because maintenance raises the prospect of a necessity for an ongoing association between the parties, especially where one party must make periodic payments to the other. This qualifies the “clean break” principle, which is variously enshrined in both the PRA⁵⁸ and the FLA,⁵⁹ and which requires a court, in making orders under the legislation, so far as is practicable, to determine finally the parties’ financial relationships, and to avoid further proceedings between them. Among others, this principle has the laudable objective of encouraging both parties to move on with the rest of their lives.

10.41 The tension that we have observed can, in our view, only be addressed and resolved in the context of a developing jurisprudence reflecting the courts’ experience in dealing with maintenance in the context of the breakdown of gay, lesbian and close personal relationships.

10.42 Once the threshold requirements for a maintenance order are satisfied, a court has to determine if it will make such an order and, if so, what the amount of the order should be. In doing so, the court must have regard to the factors listed in section 27(2) of the PRA, which are as follows:

10.45 As in the case of property adjustment orders,⁶² this raises the question whether any of the factors in s 75(2) need to be modified because their application would be inappropriate in the case of lesbian, gay and close personal relationships. This requires, in particular:

10.46 Obviously the references in s 75(2) to other sections in the FLA will need to be amended to refer to corresponding provisions in the PRA. Again, the references to “marriage” in s 75(2) will have to be replaced by “domestic relationship” or “relationship”.

10.48 Section 75(2)(m) of the FLA provides that if either party to a marriage is cohabiting with another person, the court is to take into account the financial circumstances relating to that cohabitation as a factor relevant to spousal maintenance. The operation of this factor is, potentially, affected by existing provisions in the PRA relating to the effect of a subsequent relationship or marriage on:

10.50 In contrast, the Australian Capital Territory legislation says nothing about the effect of marriage, remarriage or re-partnering on existing maintenance orders or on the ability of the parties to claim maintenance. Instead, these are factors that may be considered relevant either when considering the financial resources or financial needs of the applicant⁶⁹ or when considering an application to vary an order based on change of circumstances.⁷⁰

10.51 DP 44 asked what effect “re-partnering” should have on the availability of maintenance.⁷¹ All respondents agreed that “re-partnering” should not be an absolute bar to the availability of maintenance, but simply a factor relevant to the determination of the availability or variation of a maintenance order.⁷² New South Wales Young Lawyers also noted that the current situation is anomalous in respect of close personal relationships, providing further support for a more discretionary approach to maintenance. Just under 50% of respondents to the Questionnaire on Same Sex Relationships and the Law thought that partner maintenance should cease when the partner in whose favour the order was made begins to live with a new partner.

10.52 In 1983 this Commission was equally divided on the issue whether a maintenance order should cease when a person in whose favour it was made entered into another de facto relationship (as opposed to a marriage or remarriage).⁷³ The Commission is now persuaded by the majority of our respondents that entry into such a relationship ought not to have the automatic effect of (a) disqualifying a person from seeking a maintenance order or (b) causing the cessation of the order. The Commission is of the view that it can cause injustice if a new partner’s financial position or mere existence automatically removes the need for the ex-partner to provide for the applicant’s maintenance. Entry into a de facto relationship may not have the effect that the applicant is now able to support himself or herself. Whether it does so or not, and what its effect ought to be, is appropriately a matter to be considered on a case by case basis in the discretion of the court. It follows that Commission supports the inclusion in the PRA of an equivalent provision to FLA s 75(2)(m).

10.53 Consequentially, the Commission recommends that s 29 of the PRA should be repealed. For the reasons just given, entry into a new de facto relationship should not by itself rule out an application for maintenance against a former partner. In addition, entry into a de facto relationship or a new close personal relationship in itself would seem to have no relevance to an application for maintenance in the case of close personal relationships. Moreover, that part of s 29 which covers the marriage or remarriage of a party to a former relationship seems unnecessary. Apart from its likely irrelevance in the context of gay and lesbian relationships, the marriage will generally have the effect of removing the necessity for a maintenance order since an obligation to maintain the applicant will now rest on the (new) spouse.⁷⁴

10.54 What effect ought marriage to have on an existing maintenance order? As just noted, the marriage will create an obligation in the new spouse to maintain the applicant. This explains the rule in the PRA that marriage or remarriage of the person in whose favour it was made terminates an existing maintenance order PRA.⁷⁵ The FLA qualifies this by allowing the court to order otherwise “in special circumstances”.⁷⁶ The Commission supports this qualification, which injects flexibility into a technical rule that otherwise must be rigidly applied.

10.55 The Commission also supports extending the rule that a maintenance order ceases on the marriage or remarriage of the person in whose favour it was made to the situation where a person in receipt of maintenance from an ex-partner enters into a registered relationship with another person (that is a relationship registered in accordance with the scheme proposed in Recommendation 15). Although entry into such a relationship does not automatically give rise to an obligation to maintain, it gives the parties the right to institute maintenance proceedings without having to satisfy the requirement that the de facto relationship has lasted for a period of two years, as would be the case if the relationship were unregistered. An amendment of s 32(1) of the PRA is necessary to achieve this and to bring the law of New South Wales into conformity with that in Tasmania.

10.56 The Commission does not believe that “re-partnering” (whether understood as marriage, remarriage or entry into a de facto relationship or another close personal relationship) has any relevance to claims for maintenance by parties in close personal relationships. This ought to be reflected in the wording of the s 75(2)(m) factor in its translation into the PRA.

10.57 A further change in the wording of s 75(2)(m) is necessary to remove the reference to “cohabitation”, which, in accordance with Recommendation 5, will no longer form part of the definition of “de facto relationship”.

10.58 The Commission notes that while the FLA’s “s 75(2) factors” are located in a section of the Act dealing with spousal maintenance, the factors are relevant both to orders adjusting property and to maintenance orders. The implementation of Recommendations 27 and 35 in this Report would result in these factors being relevant to all financial adjustment orders under Part 3 of the PRA. In the Commission’s view, thought should be given to listing these factors in a more obvious place in the Act than the Division that deals with maintenance.

10.61 In contrast, the FLA places the primary burden of support on the former spouse, rather than on the social security system. Section 75(3) of the FLA directs the court, when exercising its jurisdiction to make a maintenance order, to “disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit”. This subsection was introduced in 1987.⁷⁸ Before then, the FLA adopted an approach that was closer to the PRA’s current approach, directing the court to consider eligibility for a pension, allowance or benefit when determining an application for maintenance.⁷⁹ That subsection was amended,⁸⁰ and s 75(3) inserted, in 1987, because the government had “been concerned at the very high level of social security payments being made to divorced parties who have not made adequate provision for spousal maintenance”.⁸¹

10.62 The proposition that the responsibility for supporting an individual in financial need should fall primarily on the social security system, rather than on the individual’s former partner, can no longer be supported. This is especially the case if the Commission’s recommendation to expand the PRA’s maintenance provisions to reflect more closely the FLA provisions is adopted. The majority of States that provide for maintenance for de facto couples follow the FLA approach with respect to consideration of social security payments.⁸² In the Commission’s view, this trend reflects a more appropriate balance in the relationship between maintenance and welfare entitlements than currently exists in the PRA.

Table of contents

6. See Best (1993) FLC �92-418; Bevan (1995) FLC �92-600; Mitchell (1995) FLC 92-601, discussed in J Beherns and B Smyth, Spousal Support in Australia: A Study of Incidence and Attitudes (Australian Institute of Family Studies, Working Paper 16, 1999) at 8-10. See also the decision of the Supreme Court of Canada in Moge (1993) 99 DLR (4th) 456.

7. PRA s 27(1). This is a narrow view of rehabilitative maintenance since it purports to address a condition created by the relationship: see para 10.33-10.36.

12. NSW Law Reform Commission, Report on De Facto Relationships (Report 36, 1983) (“Report 36”) at para 8.26.

15. See Family Court Act 1997 (WA) especially s 205ZC, 205ZD (which also applies to same sex relationships).

17. Lesbian and Gay Solidarity, Submission at 4; Women’s Legal Resources Centre, Submission at 24-25; NSW Young Lawyers, Submission at 14; Law Society of NSW, Submission at 9.

18. P Parkinson, Submission at 7. See also Equity Division of the Supreme Court of NSW, Submission at 25; Gay and Lesbian Rights Lobby, Interim submission at 8 (both of the these submissions tending to favour the integrative approach that looks at factors traditionally relevant to maintenance in the context of propery adjustment orders).

19. Supresencia v Powell [2002] NSWSC 773 at para 40 (Acting Master Berecry) (no maintenance where the property adjustment enabled applicant to support herself through period of retraining).

21. See Thompson-Grandou v Grandou [2002] NSWSC 1013 at para 82 (Master McLaughlin).

24. See especially B Fehlberg, “Spousal maintenance in Australia” (2004) 18 International Journal of Law, Policy and the Family 1 at 12-18.

25. See Equity Division of the Supreme Court of NSW, Submission at 25-6 (supporting an expansion of the PRA’s maintenance jurisdiction to such cases, provided there was evidence of “a substantial unmet need” to deal with such cases in the context of de facto relationships).

26. Best (1993) FLC �92-418 at 80,296 (Fogarty, Lindenmayer and McGovern JJ).

27. If there were such property, an order adjusting interests in it could involve lump sum or periodic payments: PRA s 38(1)(d) and (e).

32. See J Behrens and B Smyth, Spousal Support In Australia: A Study Of Incidence And Attitudes (Australian Institute of Family Studies, Working Paper 16, 1999) at 15.

33. The study also found that maintenance typically lasts two years and averages about $128 a week, giving rise to the comment that maintenance is “rare, minimal and brief”: see Behrens and Smyth at vii, 21.

35. As reported in B Fehlberg, “Spousal maintenance in Australia” (2004) 18 International Journal of Law, Policy and the Family 1 at 28, notes 163-165, citing J Millbank, “Domestic rifts: who is using the Domestic Relationships Act 1994 (ACT)?” (2000) 14 Australian Family Law Journal 163.

40. Property Law Act 1974 (Qld) Pt 19. But the Queensland Law Reform Commission had recommended extensive maintenance provisions: see Queensland Law Reform Commission, De Facto Relationships (Report 44, 1993) at 69-94.

42. NSW Law Reform Commission, Report on De Facto Relationships (Report 36, 1983) at para 8.23.

43. See Domestic Relationships Act 1994 (ACT) s 19(1)(a); De Facto Relationships Act 1991 (NT) s 26(1)(a).

45. NSW Commissioner for Children and Young People and National Children’s and Youth Law Centre, Submission at 6.

51. Relationships Act 2003 (Tas) s 47(1)(a). But note s 47(1)(b) where “any other reason” may arise “in whole or in part from the circumstances of the personal relationship”.

52. See Domestic Relationships Act 1994 (ACT) s 19(1)(b); De Facto Relationships Act 1991 (NT) s 26(1)(b).

53. A variation of an example in Queensland Law Reform Commission, De Facto Relationships (Report 44, 1993) at 77.

60. B Fehlberg, “Spousal maintenance in Australia” (2004) 18 International Journal of Law, Policy and the Family 1 at 20.

72. Equity Division of the Supreme Court of NSW, Submission at 25; Women’s Legal Resources Centre, Submission at 24; NSW Young Lawyers, Submission at 13-14; Law Society of NSW, Submission at 9.

81. Commonwealth, Parliamentary Debates (Hansard) House of Representatives, 29 October 1987 at 1715.

82. See De Facto Relationships Act 1991 (NT) s 26(3); Relationships Act 2003 (Tas) s 47(3); Family Court Act 1997 (WA) s 205ZD(4). By contrast, s 19(3) of the Domestic Relationships Act 1994 (ACT) expressly preserves the entitlement of the applicant for maintenance to a pension, allowance, or benefit.

83. See Doig and Doig [1999] FLC 92-869 per Kay J at 86,292; P Parkinson and J Behrens, Australian Family Law in Context: Commentary and Materials (3rd ed, Lawbook Co, Sydney, 2004) at 590; B Fehlberg, “Spousal maintenance in Australia” (2004) 18 International Journal of Law, Policy and the Family 1 at 22.

84. Social Security Act 1991 (Cth) s 4(1) defines a “partner” in relation to a person who is a member of a couple, to mean the other member of the couple. Section 4(2) defines a member of a couple as either a member of a married couple, or as a person who has a relationship with a person of the opposite sex.