I. TERMS OF REFERENCE

A. The Reference

1.1 On 13 July 1981 the then Attorney General of New South Wales, the Hon F J Walker, QC, MP, made the following reference to the Commission:

“To inquire into and review the law relating to family and domestic relationships, with particular reference to the rights and obligations of a person living with another person as the husband or wife de facto of that other person, and including the rights and welfare of children of persons in such relationships.”

The Attorney General directed that in carrying out this reference, the Commission should take into account the work already completed by the New South Wales Anti-Discrimination Board on superannuation. ¹ He noted, further, that the Commission would also take into account the proposed reference of State family law powers to the Commonwealth. ²

1.2 On 4 December 1981 the Chairman of the Commission, pursuant to section 12A(1) of the Law Reform Commission Act, 1967, formally constituted a Division of the Commission for the purposes of the reference. The Division comprises the following members of the Commission:

Professor Ronald Sackville (Chairman)

Mrs Bettina Cass

Mr Denis Gressier

Mr Justice P E Nygh

B. Scope of the Reference

1.3 The terms of reference speak of the law relating to “family and domestic relationships”, but direct attention specifically to the rights and obligations of persons living in de facto relationships. We face a preliminary question as to whether we should focus exclusively on de facto relationships in this Report, or whether we should also consider the law governing other domestic relationships. Some of the submissions made to us contended that we should adopt the broader approach. This was put on the ground that the legal problems raised by de facto relationships are not necessarily unique, but also may be presented by other domestic or household relationships, such as those constituted by parents and adult children siblings, homosexual couples or larger groups living in a common household. The Australian Council of Social Service, for example, suggested that we should not focus exclusively on de facto relationships but should consider the “interests and difficulties of persons in other sorts of domestic relationships”. ³

1.4 Despite these views, we have decided that we should not in this Report attempt to cover the whole field of “family and domestic relationships”, but should limit our attention to de facto relationships. We make this decision for several reasons.

• As Chapter 4 shows, the law now distinguishes between the legal position of parties to a de facto relationship and people living in other forms of domestic relationships. Therefore it is consistent with past practice to examine the law affecting de facto relationships without concurrently examining the law affecting other domestic relationships.
• The distinction drawn by the law accepts that de facto relationships resemble marriage to a certain extent, although not in all respects. It is this partial resemblance which has prompted legislators and policy makers specifically to confer rights and impose obligations on de facto partners in certain situations. Other domestic relationships bear less resemblance to marriage. Accordingly they present different policy and definitional questions. For example, our proposals in Part IV for a new jurisdiction to adjust the financial relationship between de facto partners cannot be applied, at least without significant modification to other forms of domestic relationships.
• To resolve all the issues implicit in a broad approach to our terms of reference would require extensive consultation and complex inquiries. This process would have substantially delayed presentation of the Report. There may well be a case for change in other areas of law affecting domestic relationships, but we think the necessary investigations can and should be undertaken as a separate exercise.

C. Terminology

1.5 This Report is there for limited to the law governing de facto relationships. We examine the definition of this term for the purposes of legislation in more detail later (Chapter 17). At this stage we note that when we use the term we mean the relationship between

“a man and woman who, although not legally married to each other, live together as husband and wife on a bona fide domestic basis.”

1.6 Many different terms have been used to refer to what we have called de facto relationships. One text writer prefers the phrase “de facto marriage”, which he describes as

“ an unsecretive relationship between a man and a woman which actually lasts for more than a short time, and within which some, or most, of the traditional western functions of marriage are performed, and which lacks the formality or ceremony prescribed by the dominant legal system” ⁴

The phrase “de facto marriage” has its analogues in legislation. For example, the Widows’ Pension Act 1942 (Cth), provided benefits to “de facto widows” (although the phrase was discarded the following year), ⁵ while the Seamen’s War Pensions and Allowances Act 1940 (Cth) continues to permit payment of a pension to a mariner’s “de facto wife”. ⁶ Our own terms of reference refer to a person living with another person as the “husband or wife de facto of that other person”. Another commentator chooses the related term “informal marriage , partly to stress the resemblance between the “informal” relationship and marriage. ⁷

1.7 The authors of a popular English handbook use the word “cohabitation” to refer to domestic relationships which are the social equivalents of marriage. ⁸ This accords with the Oxford English Dictionary meaning of cohabitation as “living together as husband and wife (often with the implication of not being married)”. ⁹ By contrast, the Macquarie Dictionary” ¹⁰ defines “cohabit” as “to live together in a sexual relationship” and omits any reference to the concept of living together “as husband and wife”. The term “cohabitation” is used in some legislation For example, the Anti-Discrimination Act, 1977, declares discrimination on the ground of marital status to be unlawful in certain areas. “Marital status” is defined to include “the status or condition of being ... in cohabitation, otherwise than in marriage, with a person of the opposite sex”. ¹¹

1.8 Throughout our Issues Paper (see paragraph 1.11), we referred to the subject of our inquiry as “de facto relationships”. We did not spell out the reasons for using this terminology, but we were influenced by what we understood to be common usage in Australia. We also decided to avoid the term “de facto marriages” mainly because it could suggest that these relationships are the equivalent of marriages in all but name and that this equivalence extends to the legal consequences that follow from (or should follow from) those relationships. ¹² During our consultations we formed the impression that the expression “de facto marriages” would not be readily accepted by some people. For example, those who saw de facto relationships as a threat to the institution of marriage often said that “marriage” should not be part of the description applied to such relationships. Likewise, those who had chosen to live together to avoid the legal regime associated with marriage, often did not wish to be described as married, whether de facto or otherwise, and certainly did not want their relationship to be regarded as a second class marriage.

1.9 The language used in the Issues Paper did not escape criticism. One submission from the Director of Court Counselling at the Family Court Registry in Melbourne, argued that

“the term ‘de facto relationship’ is a meaningless one. If you relate to another person, you have a relationship with that person. Cohabitation is as much a relationship as marriage. The term ‘de facto’ appears to me to describe the legal status of the relationship, but not the relationship itself.” ¹³

On the other hand, “de facto marriage” was described in a 1961 Tasmanian case as an “inaccurate euphemistic neologism” ¹⁴ although the suggested alternative of “concubine” hardly seems likely to entrench itself in popular usage.

1.10 We have concluded that no single expression is entirely satisfactory to describe the relationships with which we are concerned. In this Report we adhere to the phrase “de facto relationships”, but not with the intention of suggesting that those relationships are necessarily less meaningful to the partners than other kinds of relationships, including marriage. We also use “cohabitation” as a more or less interchangeable expression although we do so on the basis that a couple may be cohabiting without necessarily having a sexual relationship. We prefer, without being dogmatic, to avoid the phrase “de facto marriages” for the reasons given in paragraph 1.8, but we recognise that any statutory definition of a de facto relationship necessarily involves a comparison with marriage. We usually refer to the parties to such a relationship as de facto partners, rather than de facto spouses. However. we do not refrain from using the terms “de facto wife” or “de facto husband” where it is convenient to do so.

II. CONDUCT OF THE REFERENCE

A. The Issues Paper

1.11 On 17 December 1981 we released an Issues Paper entitied De Facto Relationships. The Paper was 120 pages in length including tables and references. An Outline of the Paper, 13 pages in length was also published. The Paper described the law governing de facto partners and their children in all Australian jurisdictions and provided information concerning the social context in which the law operates. It also identified policy questions for the guidance of persons and organisations wishing to make submissions, and canvassed the arguments for and against further legislative regulation of de facto relationships. The Issues Paper specified four main policy options, which are discussed in Chapter 5 of this Report.

1.12 Copies of the Issues Paper and Outline were distributed to interested groups and individuals in New South Wales. In addition, copies were distributed elsewhere in Australia principally through the Family Law Council. The initial print run of 2,500 copies of the Issues Paper proved inadequate to meet demand and a further 2,000 copies were printed.

1.13 We received a total of 55 submissions in response to the Issues Paper. Submissions were made by a wide range of organisations-and individuals, identified in Appendix I. Many were carefully reasoned documents which addressed the policy questions in considerable depth. The largest group (20 submissions) comprised submissions from legal sources. Submissions from church organisations and affiliated groups made up the next largest category (13 submissions). The third category consisted of submissions from women’s groups, other than those associated with churches (9 submissions). In identifying these categories we do not suggest that the views within each group were uniform. There were considerable differences of opinion within each category, although some common themes emerged from the submissions as a whole (Chapter 5).

B. Consultations

1.14 We undertook an extensive program of consultation and seminars in relation to the reference.

• Before release of the Issues Paper, preliminary discussions were held with representatives of the major churches and other interested groups.
• After release, members of the Division attended and addressed a number of seminars organised by the Anglican Church (in Sydney, Parramatta and Wollongong), the Uniting Church the Hillview Community Information Service and the Women’s Electoral Lobby. A detailed list of seminars is set out in Appendix II.
• An “Open House” was held at the Glebe Town Hall on 22 April 1982. The purpose of the Open House, which was widely publicised, was to enable Commissioners to talk informally and privately to members of the public, who had experienced legal problems associated with de facto relationships.
• Discussions were held with many of the groups and organisations making submissions to the Commission. A list of such groups and organisations is set out in Appendix III.

1.15 On 29 April 1982 we sponsored a seminar in Sydney, advertised through the Law Society Journal which attracted approximately 200 participants, principally legal practitioners. Papers were presented by Mr Justice P E Nygh (“Problems of a Divided Jurisdiction”), Ms Kaye Loder, Solicitor (“Domestic Violence and Custody”), and Mr P Rose, Barrister (“Property Disputes”). A summary was presented by Dr O Jessep, Senior Lecturer in Law, University of New South Wales.

1.16 On 21 August 1982 the Commission and the Law Council of Australia co-sponsored a seminar, primarily for lawyers, on the theme “De Factos and the Law: Time for a Change?”. The seminar, which was well attended, was held in Melbourne at the Law Institute of Victoria and our Issues Paper provided a focus of discussion Papers were presented by Mr Justice K J A Asche of the Family Court of Australia (“De Facto Relationships and Federal-State jurisdiction), Ms R J Bailey, Senior Lecturer in Law, University of Adelaide (“De Facto Relationships and the Law: Domestic Violence”), Dr. I J Hardingham Reader in Law, University of Melbourne (“De Factos and the Law: Succession Upon Death”); and Mr A Monester, QC, of the Victorian Bar (“Property Rights and Financial Relationships”). A number of commentaries on these papers were also presented.

C. Research

1.17 Our research program included the following projects.

• A comparative analysis of the law governing de facto relationships in other common law countries and Scandinavia.
• A survey of legal practitioners, designed to provide an indication of the extent to which their clients encounter legal problems associated with de facto relationships. A similar survey of welfare workers in New South Wales was also undertaken.
• A record-keeping project carried out with the co-operation of the Magistrates Courts Administration designed to provide information on legal problems associated with de facto relationships which come to the attention of chamber magistrates.
• A collection of case studies, obtained by interviewing people who were living or had lived in de facto relationships.
• An analysis of statistical information in Australia concerning the incidence and types of de facto relationships.

In addition, Associate Professor M Coper of the Faculty of Law, University of New South Wales, provided us with an opinion on certain constitutional and jurisdictional questions. Information from these projects is referred to in more detail elsewhere in this Report, particularly in Chapter 3.

D. Liaison with the Family Law Council

1.18 The Family Law Council is a Commonwealth body, the functions of which include advising the Commonwealth Attorney-General on matters relating to family law. ¹⁵ The Council for some years, has expressed interest in the subject of de facto relationships. After we received our reference, we made contact with the Council and it was agreed that our inquiry should be conducted in co-operation with the Council. The Council appointed a subcommittee to liaise with the Commission and several meetings were held with the subcommittee and with the full Council. The Council has agreed to circulate copies of this Report to interested parties beyond New South Wales with a view to the Council formulating advice on amendments to Commonwealth law and the merits of proposing uniform legislation throughout Australia. ¹⁶

E. Draft Legislation

1.19 Draft legislation embodying our recommendations is attached to this Report. The main Bill is the De Facto Relationships Bill 1983. Cognate with it are

• the Adoption of Children (De Facto Relationships) Amendment Bill 1983.
• the Compensation to Relatives (De Facto Relationships) Amendment Bill 1983.
• the Crimes (De Facto Relationships) Amendment Bill 1983.
• the Law Reform (Miscellaneous Provisions) De Facto Relationships (Amendment) Bill, 1983.
• the Wills, Probate and Administration (De Facto Relationships) Amendment Bill, 1983.

The Bills have been drafted by Parliamentary Counsel pursuant to the Commission’s instructions. We draw attention to clause 4 of the Bill which provides that

“It is the intention of the Parliament that this Act and the regulations are to give effect to the recommendations made in the report of the Law Reform Commission concerning De Facto Relationships presented to the Parliament and accordingly, in the interpretation of this Act and the regulations, regard may be had to that report, including the draft legislation set out in that report.”

Cross-references to the relevant clauses of the draft Bills are made in the Outline of Recommendations at the beginning of this Report.

III. THE STRUCTURE OF THIS REPORT

1.20 This Report critically analyses the present law governing de facto partners, discusses the general policy approach which should be adopted in reforming the law, and makes recommendations for change. In this section we briefly describe the structure and contents of the Report.

Introduction

• In Chapter 2 we describe the divided constitutional and legislative framework governing Australian family law. We also outline a proposal currently under consideration in several States, for a reference of State powers concerning the maintenance, custody and guardianship of children to the Commonwealth. We discuss the implications of this proposed reference of powers for our own inquiries.

The Social Context

• In Chapter 3 we analyse statistical information on the incidence of de facto, relationships, and on the socioeconomic and demographic characteristics of people living in such relationships. The information was obtained from recent surveys of Australian families made by the Australian Bureau of Statistics and the Institute of Family Studies. We also discuss material we have gathered on the nature of legal problems experienced by de facto partners. The Chapter shows, among other things, that the incidence of de facto relationships in New South Wales and in Australia generally, has increased markedly in recent years. and that legal problems are frequently encountered by de facto partners.

Current and Future Policy

• In Chapter 4 we describe the extent to which current Commonwealth and State law recognises de facto relationships for the purpose of conferring benefits and imposing obligations on de facto partners. We conclude that the extent of recognition is such that the present law no longer consistently discourages de facto relationships, either by penalising de facto partners or withholding advantages from them.
• In Chapter 5 we argue that there are several factors indicating that the present law affecting de facto partners requires reform. These include the substantial and increasing number of people living in de facto relationships, the significant injustices produced by the present law, and a broad community acceptance of the need for change. We reject, however, the view that the legal consequences of de facto relationships should be equated with those of marriage. We argue that the fourth approach outlined in the Issues Paper on De Facto Relationships should be adopted. This approach involves examination of specific areas of the law to determine whether there are injustices or significant anomalies, and if so, to decide what remedial action should be taken. We undertake this examination in the remaining Chapters of the Report.

Financial Adjustment Between De Facto Partners

• In Chapter 6 we describe the development of matrimonial property law and the law affecting maintenance between married partners. This discussion is the background to our critical evaluation in succeeding Chapters, of the modern law affecting financial disputes between de facto partners.
• In Chapter 7 we describe the present law governing property disputes between de facto partners. We argue that the present inability of the law to take into account indirect contributions made by one partner to the acquisition conservation or improvement of property owned by the other partner, often leads to significant injustice. We recommend that the court should have power to adjust the property rights of the partners where it is just and equitable to do so, having regard to a wide range of contributions.
• In Chapter 8 we describe the present law governing maintenance claims between de facto partners. We argue that the present law should be changed to give the court a limited power to award maintenance if the applicant is unable to support himself or herself adequately because he or she has the care of young children, or because his or her earning capacity has been affected by the relationship and re-training is required. We analyse the criteria that should be taken into account by the court in determining a maintenance claim Among other things, we recommend (by a majority) that maintenance should not supplant social security as the primary source of support for a de facto partner in needy circumstances.
• In Chapter 9 we discuss in detail the operation of the proposed new jurisdiction to adjust the financial relationship between de facto partners. We take the view that, in general the court s power to adjust property, or to award maintenance, should be available only when the partners have lived together for a specified period (which should be either two or three years). However, we think these powers should also be available where the partners have had a child, or where compliance with the qualifying period would for particular reasons, cause injustice. We argue that the court should have a wide range of powers, and that where possible, orders should be made which finally determine the financial relationship between, the partners.
• In Chapter 10 we discuss a number of consequential matters arising out of our earlier recommendations concerning property and maintenance.
• In Chapter 11 we discuss cohabitation agreements and separation agreements made between de facto partners. We recommend that agreements between partners with respect to financial matters concerning their relationship should no longer be held to be legally unenforceable as contrary to public policy. We also say that, in general such agreements should bind the court in proceedings between de facto partners for financial adjustment, provided that certain conditions are satisfied These are designed to ensure that the partners receive independent advice before entering the agreement and understand its significance. However, even where these conditions are satisfied, we recommend that the court should have power in financial adjustment proceedings to overturn or vary cohabitation (but not separation) agreements if circumstances have so changed that enforcement of the agreement would lead to serious injustice.

Financial Adjustment on Death

• In Chapter 12 we discuss the present law on succession on death. We recommend that where a de facto partner dies without a valid will (“intestate”), the other partner should be entitled, in certain cases, to share in the deceased partner’s estate. We also discuss recent changes to family provision law. The se enable a surviving de facto partner to claim provision from the estate of a deceased partner if that partner’s will or the rules of intestacy do not make adequate provision for the survivor’s support.
• In Chapter 13 we recommend that the class of persons eligible to bring a claim for damages in respect of the wrongful death of a person under the Compensation to Relatives Act, 1897, should be extended to include a de facto partner of the deceased. We also recommend that the Law Reform (Miscellaneous Provisions) Act 1944, should be amended to enable a de facto partner of a person “killed, injured or put in peril” to recover damages for mental or nervous shock.

Domestic Violence

• In Chapter 14 we discuss the problem of domestic violence which has recently been the subject of legislation in New South Wales. We recommend that the Supreme Court should have specific statutory jurisdiction to grant an injunction to protect a de facto partner, or a child of the partners, from violence, molestation or harassment by the other partner. We provide for the Supreme Court, when granting such an injunction to authorise the arrest of the respondent without warrant if the injunction is breached. We also recommend the amendment of section 547AA of the Crimes Act, 1900, to permit Local Courts to make an “apprehended domestic violence order” in cases of molestation or harassment falling short of violence.

Children

• In Chapter 15 we discuss in more detail the present fragmentation of jurisdiction relating to the custody, guardianship and maintenance of children, and discuss a number of possible solutions to the jurisdictional difficulties. We also discuss the proposed reference of powers to the Commonwealth, and the consequences of federal legislation pursuant to the reference of powers. We discuss the inability of de facto partners to adopt children and make limited recommendations about the adoption of a child of one of the partners. We also discuss consents to adoption.

Miscellaneous

• In Chapter 16 we refer to a variety of enactments which might be thought to raise issues relevant to a report on de facto relationships. In most cases they do not raise policy issues of general importance.

Definition

• In Chapter 17 we adopt a basic definition of “de facto relationship”, namely

“the relationship between a man and a woman who, although not legally married to each other, live together as husband and wife on a bona fide domestic basis”.

Consistently with the approach adopted in Chapter 5 we recognise that a uniform definition of a de facto relationship is not necessarily appropriate for all cases. In some cases it may be necessary to modify the basic definition by, for example, requiring a specified period of cohabitation. In this Chapter we suggest that the court should have power to declare whether a de facto relationship existed at a particular time or had continued for a specified period.

1. See paras.4.45-4.47.

2. See paras.2.13 ff

3. Australian Council of Social Service, Submission No.26. p.2. See also NSW Bar Association, Submission No.23, p.1, not arguing in favour of a broad approach but pointing to similar issues arising out of other family arrangements.

4. J H Wade, De Facto Marriages in Australia (1981), p.l.

5. See paras.4.15-4.16.

6. Seamen’s War Pensions and Allowances Act 1940 (Cth), s.19. Cf. Family Relationships Act 1975 (SA), s.11(1).

7. H A Finlay, “Defining the Informal Marriage” (1980) 3 University of New South Wales Law Journal 279.

8. A Bottomley, K Gieve, G. Moon and A. Weir, The Cohabitation Handbook (1981), pp.2-3.

9. Oxford English Dictionary (1933), vol.2, p.598.

10. The Macquarie Dictionary (198 1), p.372.

11. Anti-Discrimination Act, 1977, s.4. The same language is used in the Sex Discrimination Act 1975 (SA), s.4.

12. Some submissions pointed out that there is a widespread belief that, after a certain period of living together as if they are married, a man and woman acquire the status of married persons: Legal Aid Commission of Victoria. Law Reform Committee, Submission No.50, p.3. That this belief is widespread tends to be confirmed by telephone inquiries received at the Commission from people who assumed that after a certain period the relationship matures into a marriage.

13. Director of Court Counselling, Family Court of Australia, Melbourne Registry. Submission No.51.

14. Maddock v. Beckett [1961] Tas SR 46, at p.52, per Burbury CJ.

15. Family Law Act 1975 (Cth), s.115(3).

16. See Family Law Council, Annual Report 1981-82, para.42.