Lawlink NSW: 17. The Problem of Definition

17.1 Throughout this Report we have used the terms “de facto relationship” and “de facto partners”. In paragraph 1.5 we provided a working definition of a “de facto relationship” and indicated that we would return to the question of a precise statutory definition later. We now do so.

17.2 We have given a number of examples of statutory definitions of de facto relationships that have been designed to cover a wide variety of situations. In some instances, an “all purposes” definition has been adopted. The Anti-Discrimination Act, 1977, for example, defines “marital status” to include “the status or condition of being ... in cohabitation otherwise than in marriage, with a person of the opposite sex”. ¹ On the basis of this definition the Anti-Discrimination Board investigated and reported on a wide range of statutory provisions which it saw as discriminating against persons in de facto relationships. ² In South Australia, the Family Relationships Act 1975, contains a complex definition of “putative spouse”, based on the alternative of a minimum period of cohabitation or cohabitation for any period together with the birth of a child. A person who satisfies the definition is equated with a married person for the purposes of the law relating to, among other things, intestacy, family provision, fatal accidents, death duties, and superannuation. ³

17.3 Elsewhere in this Report we have explained that our approach has been to examine specific areas of law to determine whether there are injustices or anomalies which ought to be remedied. For reasons we have given in our consideration of each area of the law, we do not think that a uniform definition of a de facto relationship is necessarily appropriate for all legal purposes. Thus, for example, our recommendations on adjustment of property and maintenance require, in general that the parties should have lived together for a specified period before the powers of the court can be invoked (paragraphs 9.7-9. 10). The powers of the court can also be exercised where the parties have lived together and have had a child. Similarly, we recommend that, in certain circumstances, the entitlement of a person to succeed to property on the death intestate of his or her de facto partner should require proof that the relationship had lasted for a minimum period (paragraphs 12.27-12.37). On the other hand, our recommendations on compensation for fatal accidents and protection against domestic violence do not require a de facto partner to show that the relationship had continued for any particular period (paragraphs 13.19 and 14.41). Nonetheless, we think it is appropriate to formulate a basic definition of a “de facto relationship” for legislative purposes. This definition should be capable of modification to incorporate additional eligibility criteria, in particular, a minimum period of cohabitation as the context requires. We now turn to this question.

17.4 We think the basic statutory definition of a de facto relationship should be as follows:

Where it is necessary to include in legislation a requirement that a relationship has continued for a minimum period (as in the case where a de facto partner seeks property adjustment or an order for maintenance), the phrase “on a bona fide domestic basis” should be replaced by the phrase “on a permanent and bona fide domestic basis”. We do this in conformity with a drafting convention which has developed for Commonwealth legislation We think it is appropriate for State legislation to follow suit.

17.5 We have two reasons for adopting the basic definition. The first is common statutory usage. The definition, with minor variations, is the standard form adopted in Commonwealth legislation, including the Social Security Act 1947. ⁴ In New South Wales, it appears that the Commonwealth form has now been adopted. Thus the Workers’ Compensation Act, 1926, the Crimes (Domestic Violence) Amendment Act, 1982, and the Family Provision Act, 1982, all use the standard language, ⁵ again with minor variations. ⁶

17.6 The second reason is that decisions of the Administrative Appeals Tribunal and the Federal Court of Australia have clarified the meaning of key words in this definition in the context of Commonwealth legislation, mainly that dealing with social security. ⁷ Most of these decisions were given in cases where a claimant for a widow’s pension or supporting parents benefit was concerned to show that she was not living in a de facto relationship, so as to avoid being excluded from the pension or benefit by operation of the so-called “cohabitation rule”. Nonetheless, these decisions assist considerably in determining whether or not a particular domestic arrangement amounts to a “de facto relationship” within the meaning of the statutory language we have suggested should be employed. We now refer to some of these decisions.

17.7 In Re Lambe, the applicant s supporting parent s benefit had been cancelled on the ground that she was “living with a man as his wife on a bona fide domestic basis although not legally married to him”. ⁸ The applicant unsuccessfully appealed to the Administrative Appeals Tribunal. ⁹ In the course of its judgment, later upheld by the Federal Court of Australia, ¹⁰ the Tribunal made the following observations:

[T]he question of financial support provided to a woman will be an important consideration but it is only one of a number of relevant matters which need to be taken into account ....

Before a woman can be said to be living with a man ‘as his wife’, there must in our view, be elements both of permanence and exclusiveness in the relationship, as these elements are of the essence of a marriage relationship .... But within those broad confines, it is surely a notorious fact that marriage, in present day society, allows considerable scope to the parties to develop their relationship as they see fit without damaging the fundamental integrity of that relationship as a marriage.” ¹¹

17.8 The Administrative Appeals Tribunal has elaborated upon the difficulties of comparing a de facto relationship with “marriage”. In Re Tang, the Tribunal noted that

Despite the obvious difficulties, the Tribunal stated its task to be that of analysing the particular relationship “in the light of the indicia of the marriage relationship”. The Tribunal was not prepared to place heavy reliance on the subjective opinion of the parties as to the nature of their relationship. While some reference to the subjective element was appropriate,

17.9 In a similar vein, the Tribunal in Re R C., noted the problem of identifying the distinctive elements which characterize a marriage. The Tribunal considered that the test posed by the legislation

When referring to the “indicia” of a marriage relationship, the Tribunal cited with approval comments by the Full Court of the Family Court

17.10 The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship, to a long-term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a new legal significance. While criteria such as those outlined in the previous paragraph will be useful as a guide in assessing the nature of a relationship, decisions in borderline cases will necessarily require a close and detailed examination of all aspects of the parties’ domestic arrangements.

17.11 A review of the Tribunals decisions in social security cases reveals a large number of matters considered by the Tribunal in deciding whether or not a particular relationship amounted to a de facto relationship: the nature and extent of common residence; the duration of the relationship; whether or not a sexual relationship existed; the degree of financial interdependence and arrangements for support the ownership, use and acquisition of property, procreation of children; care and support of children, performance of household duties; use of a common surname; nature of social activities; degree of mutual commitment and moral support; plans for a common future; reputation and “public” aspects of the relationship; and explanations and interpretations offered by the parties. ¹⁶ It is not practicable to attempt an exhaustive list or a precise weighting of all factors, but it is apparent that the Tribunal places particular emphasis on the nature, extent and duration of common residence, and on the presence of a sexual relationship.

17.13 The case law and guidelines to which we have referred will help to decide whether a particular relationship satisfies our basic definition of a de facto relationship. But, in many, if not most, cases, there will be no doubt whatever that the relationship in question does satisfy the definition. There will however, be some cases where further guidance may be helpful.

17.14 Is cohabitation with a spouse consistent with concurrent cohabitation with a de facto partner? And, can a person be a party to more than one concurrent de facto relationship? If regard is had to the terms of the basic definition it is conceivable that in some cases affirmative answers would be given to both questions. ¹⁸ The issue arises therefore whether the definition should be so qualified as to exclude the possibility of such answers, either for all aspects of the law affecting de facto partners or for only some aspects of that law.

17.15 In general we do not seek to define “de facto relationship” in such a way as to deny rights to the de facto partner of a person who is concurrently married and cohabiting, at least to some extent with his or her spouse. ¹⁹ We stress that we say “in general. In Chapter 12, for example, in the context of intestacy law, we recommend that where there is, in effect competition between a spouse and a de facto partner, the latter should be preferred only if the de facto relationship has continued for a prescribed period and the deceased person has not, at any time during that period, cohabited with his or her spouse. Subject to qualifications of this kind in particular contexts, we would leave the courts to determine whether a de facto relationship can exist at the same time if one of the parties continues to live (albeit intermittently) with his or her spouse. In our view, to do otherwise would mean that substantial injustice might occur in some cases.

17.16 Likewise, we do not seek to define “de facto relationship” in such a way as to exclude the possibility that rights may arise out of more than one such concurrent relationship. It would be an exceedingly rare case where a court would be satisfied that a person is living in two or more relationships at the same time, each of which satisfies the conditions of the basic definition. The more likely outcome would be a finding that none of the relationships satisfied these conditions. But, bearing in mind the possibility that the rare case may occur, we would not confine our recommendations to relationships which are, in effect monogamous de facto relationships. If so confined, injustice could sometimes, albeit rarely, arise. In any event, if as stated in the previous paragraph we are prepared to recognise the possibility of concurrent married and de facto relationships, we should also be generally prepared to recognise concurrent de facto relationships.

17.17 In the preceding paragraph we have assumed that the multiple de facto relationships to which we refer would involve separate households. There may be, however, instances where one person may have more than one de facto partner and all parties live together in the same household. In our view none of the relationships would satisfy the basic definition in this situation Among other things there would be no representation to the outside world that the relationship is between one man and one woman and the “indicia of the marriage relationship” would not be present.

17.18 The basic definition of a de facto relationship does not specify any minimum period during which the parties must live together. Where, however, it is desirable to specify such a period, is it also desirable to require that the parties must have lived together “continuously” for that period? The South Australian Family Relationships Act 1975 and the Ontario Family Law Reform Act 1978 do so, but the Social Security Act 1947 does not, ²⁰ using instead the formula to which we referred in paragraph 17.4. When we specify a minimum duration for the relationship we intend that the parties should have lived together continuously for that period, subject to this qualification: continuity should not be broken merely by reason of separations brought about by outside circumstances, such as business trips or illness, or separations brought about by disagreements where the separation is intended to be temporary only. We believe that the language we have suggested will be interpreted in a manner consistent with our intention. Accordingly, we do not think that the word “continuously” need be used in cases where a minimum period of cohabitation is required.

17.19 We recommend that the basic definition of a de facto relationship, for the purposes of legislation, should be the following:

17.20 At this stage it is convenient to deal with another matter closely related to the problem of definition. The question whether a de facto relationship exists or has existed between two persons, may arise in a number of contexts. For example, we have recommended changes to the Wills, Probate and Administration Act 1898, ²¹ and the Compensation to Relatives Act 1897. ²² If these are implemented and if one de facto partner dies intestate as a result of an accident the surviving partner may wish to claim compensation under both the Workers’ Compensation Act, 1926 and the Compensation to Relatives Act, 1897, and may also wish to claim a share of the estate of the deceased partner. All of these claims may be opposed on the ground that it has not been established that the claimant was living in a de facto relationship with the deceased. Clearly it would be convenient if the issue could be resolved once and for all in a single hearing, instead of being litigated in a number of different proceedings.

17.21 Although section 75 of the Supreme Court Act 1970, enables the court to make declaratory judgments or orders, a declaration is binding only on the parties to the proceedings. The procedure could be inappropriate where a person unilaterally seeks to establish that he or she was a de facto partner, or where the question arises in different proceedings involving different parties. This would be the case, for example, where an employer under the Workers’ Compensation Act 1926, resists payment of compensation to a person claiming to be the de facto partner of a deceased worker, and a child of the deceased resists the alleged de facto partner’s claim to a share in the deceased’s intestate estate.

17.22 We think it is desirable to provide a procedure which might be used to avoid multiplicity of proceedings. The procedure should enable a person to obtain a declaration as to whether or not a de facto relationship exists or has existed at a particular date or between particular dates. In reaching this view we have been influenced by the model provided by the Children (Equality of Status) Act 1976. This Act enables an application to be made to the Supreme Court for a declaration of paternity and maternity, and provides that while such a declaration is in force, the person named in the declaration is to be conclusively presumed to be the mother, or father, of the child. ²³

17.23 Thus, we recommend that, where any person alleges that a de facto relationship exists, or has existed, at a specified date, or for a specified period, between that person and another named person, or between two named persons, he or she should be able to apply to the Supreme Court for a declaration. If it is proved to the satisfaction of the Court that such a relationship exists or did exist, the Court should be empowered to make a declaration to that effect. We further recommend that while the declaration remains in force, the persons named in the declaration should, for all purposes, be presumed conclusively to have been living in a de facto relationship at the specified date or for the specified period.

17.24 Unlike a declaration made under section 75 of the Supreme Court Act 1970, a declaration that a de facto relationship exists, or has existed, should be binding upon persons who are not parties to the proceedings. Thus, interested persons should have an opportunity to be heard on the question whether or not the declaration should be made. We recommend that where any person whose interests would, in the opinion of the court, be affected by the making of the declaration is not present or represented at the hearing, and has not had the opportunity to be present or represented, the court should be empowered, if it thinks that that person ought to be present or represented, to adjourn the hearing in order to enable that person to be given an opportunity to be so present or represented. This recommendation is based on sections 13(2) and 15(2) of the Children (Equality of Status) Act, 1976.

17.25 In some cases a declaration may be made by the Supreme Court and it may later appear that relevant facts or circumstances were not disclosed to the court. The absence of any power to set the declaration aside if new facts are disclosed could give rise to injustice. Accordingly, we recommend that the court should be empowered to make an order annulling a declaration, where it appears to the court that new facts or circumstances have arisen that have not previously been disclosed to the court. However, any annulment of a declaration should not affect anything done in reliance on the declaration before its annulment. ²⁴

17.26 One further point should be noted. In this Report we have rejected the view that a de facto relationship should automatically give rise to specified rights and obligations. ²⁵ The declaration procedure we have recommended is designed simply to provide a de facto partner with a convenient means of avoiding a multiplicity of proceedings. A person who makes a claim on the basis that he or she was living in a de facto relationship should not be required to first obtain a declaration. Nor is it our intention that a declaration that a de facto relationship exists or has existed at a particular date should create a status which automatically confers rights on the de facto partner. Our approach may be contrasted with the one adopted in South Australia, where a person who, for example, wishes to make a claim on the estate of a deceased de facto partner must first obtain a declaration from the Supreme Court that he or she was a “putative spouse” of the deceased. ²⁶

17.27 In this Chapter we have proposed a basic definition of a de facto relationship for use in legislation. The definition we propose follows language already widely employed in Commonwealth and State legislation. However, as we have explained elsewhere in this Report the same definition should not be applied, without modification to all areas of law. In particular, the period of cohabitation necessary to establish the entitlement of a de facto partner to specified benefits varies according to the context. We also recommend that the Supreme Court should be empowered to declare that a de facto relationship exists or has existed between two persons at a particular time or for a particular period. This additional power will minimise the danger of duplication of Proceedings.

2. NSW Anti Discrimination Board, Discrimination in Legislation (1978), vol.1. See para.5.42.

6. The Workers’ Compensation Act, 1926, s.6 uses the phrase “permanent and bona fide domestic basis”, even though there is now no minimum duration specified in the section. The section initially included such a requirement and the underlined words may have been overlooked (assuming it was intended to follow Commonwealth precedents) when the section was amended in 1981. The definition of “eligible person” in the Family Provision Act, 1982, s.6(a) omits the phrase “although not legally married” to the other partner. It is not clear why this phrase is omitted, although no significant consequences appear to flow from the Omission.

7. The major cases are the following - Re Waterford (1980) 49 FLR 98; Re Lambe (1981) 1 SSR 5 (AAT), (1981) 38 ALR 405 (Federal Court): Re Semple (1981) 1 SSR 6; Re Tang (1981) 2 SSR 15; REPC (1981) 4 SSR 36; Re Ferguson (1982) 5 SSR 55; and Re Tozer (1982) 10 SSR 99.

15. Id., pp.37-38, citing In the Marriage of Pavey (1976) 10 ALR 259, at p.26 3. See also Falk and Falk [1977] FLC 90-247.

16. See cases cited in note 7 above. The guidelines are discussed at length in A. Jordan. As His Wife - Social Security Law and Policy on de Facto Marriage (1981).

18. Cf. Furmage v. Social Security Commission (NZ) (1980) 2 NZAR 75, discussed in J Hughes, “Domestic Purposes Benefit Lessons from the Furmage Case” [1979] New Zealand Law Journal 32.