Lawlink NSW: 3. De Facto Relationships: Social and Economic Aspects

3.1 This Chapter describes and analyses a range of statistical and other information about

3.2 Our purpose here is to outline the social and economic aspects of de facto relationships, to explore the similarities and differences between de facto cohabitation and marriage, and to provide examples of the legal issues raised by de facto relationships. In our Issues Paper we tentatively identified four major types of de facto relationships. We suggested that they vary according to economic circumstances; the socioeconomic position of the partners; their marital status, age group and stage in the life-cycle, and their motivation. We suggested that all the available evidence pointed to an increase in de facto relationships during the 1970s, and that it would be useful to seek further information on the reasons for these changes. This Chapter analyses the available information which includes some important new material and draws out policy implications.

3.3 In the Issues Paper, ¹we estimated the increase in the number of people living in de facto relationships. We used material gathered during the 1971 and 1976 Censuses by the Australian Bureau of Statistics (ABS). We estimated the minimum number of people, aged 15 years and over, who were living together in 1976 to be 131,876 persons or 2.2 per cent of all couples (married or de facto). It appeared that approximately 50 per cent of these de facto couples had children within their household (although not necessarily children born within the current relationship). The figures for 1976 represented an almost four-fold increase in the number of people identified in the 1971 Census as de facto partners (from 34,166 to 131,876). As we pointed out in the Issues Paper, those figures were based on inadequate information. For example, the 1976 Census form offered “de facto spouse” as a possible description but the 1971 Census did not. The figures might also have been affected by changes in the willingness of people to answer sensitive questions about their personal lives.

3.4 We said that our estimate of the number of de facto couples almost certainly understated the true position although we were confident that there had been a significant increase in the period 1971 to 1976. We concluded that additional and more reliable information was required on the incidence of de facto relationships and on the characteristics of people living in such relationships. Since publication of the Issues Paper, two important surveys of Australian families have been completed and their preliminary findings made available to us. The Australian Bureau of Statistics carried out an extensive survey of Australian families from March to June 1982 (“Australian Families 1982”). This survey sampled 15,000 dwellings with national coverage (that is, all capital cities, other urban and metropolitan areas and rural areas were included). All persons aged 15 years and over in each dwelling were interviewed, except for school students. The findings of the survey are applicable, statistically, to the Australian population aged 15 years and over. ²

3.5 The Institute of Family Studies (IFS) also carried out a survey of Australian families in late 1981 (“The Family Formation Project”). This survey sampled 2,548 persons aged 18 to 34 years in households in major cities, smaller urban areas and rural localities throughout Australia. The results of this survey provide valuable supplementary information on matters not covered by, or not yet available, from the ABS survey. ³

3.6 Both surveys sought specific information on de facto cohabitation In its preliminary report, the ABS categorised cohabiting couples as either “legally married” or “living together as married/de facto”. This reflects the wording used in the question on marital status asked of respondents. ⁴The IFS subdivided people living in de facto relationships according to their formal marital status (never married, separated, divorced) and whether there were children in the family. In our tables we have combined these categories so as to provide sufficient numbers on which to base our analysis.

3.7 In this Chapter we often make comparisons between de facto partners and people who have a different marital status. This causes some difficulty with the use of familiar words such as “married” and “single”. We use these words in a more precise sense than is usual and also use phrases which reflect the categories used in statistical sources. Some people living in de facto relationships remain formally married to someone else, but we never include them in the category of “married”. Some people living in de facto relationships have never been married, but for our purposes they are not described as “single”, and with one exception are not usually described as “never-married”. The one exception is in Table 3.3 and the accompanying text, where we are concerned with the formal marital status of people living in de facto relationships. We also use the term “not currently married” in a special sense: it includes people living in de facto relationships, single people, divorced, widowed and separated people. In summary:

B. Increase in De Facto Cohabitation in Australia, 1971-1982, and Some International Comparisons

3.8 We have referred to the four fold increase from 1971 to 1976 in the number of people living in de facto relationships (paragraph 3.3) from 34,166 to 131,876. From 1976 to 1982, the number of de facto partners increased to 337,316 - an increase of 156 percent (Table 3.1). It must be remembered, however, that the 1971 and 1976 figures are derived indirectly and are minimum estimates. By contrast the 1982 figures are derived from a careful attempt by the ABS to collect this information. Although it is possible that the 1982 figures are also underestimates (principally because of the unwillingness of some of the people being interviewed to identify themselves as de facto partners, particularly those in older age groups), ⁵these figures are nevertheless much more reliable than our earlier estimates. Part of the apparent increase may therefore reflect more efficient collection of information.

	1971 ¹	1976 ²	1982 ³

Number of people living in de facto relationships	34,166	131,876	337,316
De Facto couples as a proportion of all couples (married and de facto)	0.6%	2.2%	4.7%
People living in de facto relationships as a proportion of persons not currently married aged 20 to 64 years	N/A	7.0%	12.0%
Number of de facto families containing dependent children	10,407	32,188	59,640
Proportion of de facto families containing dependent children	61%	49%	36%

3.9 It appears, therefore, that between 1976 and 1982 the numbers of people living in de facto relationships more than doubled. During the same period the numbers of married people increased by only 16 per cent As a consequence, de facto couples as a proportion of all couples (married and de facto) increased from 2.2 per cent in 1976 to 4.7 per cent in 1982.

3.10 The problems of comparing international statistics on de facto cohabitation are formidable because of the unreliability of the data, and because uniform definitions are not used. However, the literature on the trend of de facto cohabitation in Europe, Britain and the United States during the 1970s shows a consistent increase in the rate of cohabitation particularly for people under 35. ⁶The proportion of de facto couples to all couples in Australia in 1982 (4.7 per cent) is similar to that in the United States in 1977 and in Britain in 1979, although it is likely that the rate has increased in those countries since the late 1970s. Census figures from New Zealand in 1981 and France in 1979 show a higher rate of de facto relationships (at 6.2 per cent and 6.0 per cent respectively of all couples). Official statistics report even higher proportions for the Netherlands (7 percent in 1977) and for Denmark and Sweden (13 and 15 per cent, respectively, in the late 1970s).

Age (years)		Married	De Facto	Total

15-19	N	24,930	28,240	53,170
	%	46.9	53.1	100.0
20-24	N	396,400	95,750	492,150
	%	80.5	19.5	100.0
25-29	N	787,870	70,850	858,720
	%	91.7	8.3	100.0
30-39	N	1,794,200	75,500	1,869,700
	%	96.0	4.0	100.0
40-49	N	1,358,310	39,340	1,397,650
	%	97.2	2.8	100.0
50-59	N	1,213,540	21,230	1,234,770
	%	98.0	2.0	100.0
60 and over	N	1,205,370	6,410	1,211,780
	%	99.0	1.0	100.0
Total	N	6,780,620	337,320	7,177,940
	%	95.3	4.7	100.0

3.11 The overall figures tend to obscure the extent of de facto cohabitation, because they are based on proportions of couples across all age groups. In all the countries studied, these proportions are highest in younger age groups. ⁷The Australian figures (Table 3.2) show that in the age group 15-19, de facto couples comprise 53 percent of all couples; for those aged 20-24 the proportion is 20 per cent and in the age group 25-29 the proportion is 8 per cent. The proportion falls to 4 per cent for those aged 30-39, 3 per cent for those aged 40-49 and 2 per cent for those aged 50-59. For the age group 20-39, individuals living in de facto relationships constitutes percent of all persons living with a partner. Figures for New Zealand, for example, (derived from the 1981 census) are very similar. In the age group 20-39, de facto couples comprise 10 per cent of all couples, with the rate falling to 3 per cent for people aged 40-59. ⁸The similarities among advanced industrial societies suggest that similar economic and social factors may influence rates of de facto cohabitation.

3.12 The marital history of de facto partners in Australia reflects the fact that a large proportion of them are in the younger age groups. Sixty-three per cent of de facto partners in the Family Survey had never been married, 13 per cent were separated, 23 per cent were divorced and 2 per cent were widowed. This pattern is similar to that of de facto partners in the United States ⁹and in Britain. ¹⁰(where never-married people also predominate, but not to such a marked extent). Although we cannot make accurate estimates of changes in composition since 1976, the figures suggest that the greatest increase in the incidence of de facto cohabitation has been among young, never married people. ¹¹

3.13 It is possible to obtain a clearer picture of the relationship between marital status and cohabitation by examining the incidence of de facto cohabitation among people who are not currently married (which includes for these purposes married people who are not living with their spouse). This group includes separated divorced and widowed persons as well as those who have never been married. Of all people who are not currently married, 9 per cent are living in a de facto relationship. However, while 8 per cent of people who have never married are living with a de facto partner, this proportion increases to 17 percent for separated people and 19 percent for divorced people. Only one percent of widowed people identified themselves as living in a de facto relationship (Table 3.3). From 1976 to 1982 the proportion of people not currently married, in the age group 20 to 64 years, who were living in a de facto relationship increased from 7 per cent to 12 per cent (Table 3. 1). The figures tend to suggest that there has been an increase in the prevalence of de facto relationships both among young, never married people and among divorced and separated people. ¹²

3.14 The statistical information available to us permits only an analysis of the current position. That is, the statistics provide a “snapshot” of current patterns of married and unmarried cohabitation They tell us little of processes over the life-cycle of the people involved: for example, the extent to which cohabitation is followed by marriage; or the relationship between separation and divorce and subsequent de facto cohabitation and possibly remarriage. The British Household Survey provides some information on these processes, which may indicate possible Australian trends. Almost 20 per cent of people entering their first marriage in 1977-1979 had lived together before their marriage; and of second or subsequent marriages (for either partner) 60 per cent of couples had lived together before their marriage. The findings suggest an increasing trend towards pre-marital cohabitation particularly marked during the 1970s, with cohabitation before a second or subsequent marriage having become a majority practice in recent years. ¹³There is some indirect Australian evidence which suggests a similar trend: commentators have pointed to the high rate of remarriage after divorce as a possible indication of a prior de facto relationship. ¹⁴It is also significant that almost one-fifth of separated and divorced people were living in a de facto relationship in 1982.

Table 3.3: Incidence of De Facto Cohabitation For Persons “Not Currently Married”,* by Marital Status

	Never Married		Separated		Divorced		Widowed		Total
	N	%	N	%	N	%	N	%	N	%

Individuals living together “as married”	211,080	8.4	43,160	17.3	76,240	18.7	6,830	1.0	337,310	8.7
All persons not currently married	2,514,890	100.0	294,040	100.0	407,410	100.0	693,150	100.0	3,864,490	100.0

3.15 An increase in de facto cohabitation (and the likelihood of the increased willingness of de facto partners to indicate this to official statisticians) has been accompanied by increased community acceptance of de facto cohabitation As is documented more fully in Appendix IV, evidence from public opinion polls in the period 1971-1977 and from the Family Formation Project in 1981 shows a marked increase in acceptance or approval of “unmarried couples living together”.

3.16 The changing proportion of people indicating disapproval of de facto cohabitation provides a useful index of community attitudes. In a public opinion poll of 1971-1972,51 per cent of people indicated disapproval By 1977, the proportion expressing disapproval had fallen to 35 per cent. In this period, expressions of approval increased for both men and women, but markedly so for women - resulting in almost no discernible difference in men’s and women’s attitudes on this issue. The age factor remained significant. In 1977 a small proportion (16 per cent) of people under 30 expressed disapproval of unmarried couples living together, while one-third of people aged 30 to 49 disapproved. The Family Formation Project survey in 1981 found that 22 per cent of people aged 18 to 34 disagreed with the statement that: “it is alright for a couple to live together without planning to get married”. We conclude that in the decade 1971-1981 there has been a clear trend towards increasing acceptance of de facto cohabitation that men’s and women’s attitudes have become increasingly similar and that younger age groups show the highest level of acceptance.

3.18 In the Issues Paper¹⁵ we suggested that the increase in de facto relationships in the 1970s could be related to three interconnected processes:

We are now in a better position to make an assessment of the relative importance of these three factors in accounting for the increase in de facto relationships.

3.19 Historians have shown that while marriage patterns are sensitive to economic recession and high levels of unemployment, other factors have also produced a tradition of “informal marriage”. ¹⁸They have suggested that sections of the working class, particularly among poorer, unemployed, seasonal and migratory workers, did not enter into formal marriages. For another group, the relative difficulty and expense of obtaining a divorce led to de facto relationships becoming “poor people’s remarriage”. ¹⁹There cognition of de facto relationships in social welfare legislation since early this century is testimony to the place of de facto relationships in Australian domestic life. ²⁰It is likely, too, that the social dislocation of wartime contributed both to an increase in de facto relationships and to a willingness to recognise it for certain purposes. Two significant pieces of wartime related legislation recognising de facto relationships were the Australian Soldiers’ Repatriation Act 1920 (Cth) and the Widows’ Pension Act 1942 (Cth) (paragraphs 4.14-4.15).

3.20 While the figures (Table 3.5) show that some current de facto relationships are of very long duration, the factors mentioned in the previous paragraph standing alone, cannot account for the recent increases in de facto relationships. As will be seen, people living in de facto relationships do not appear to come from an identifiable minority group in the population (paragraphs 3.22-3.36). Most importantly, we have seen that de facto relationships have increased among young people who have never been married, and among divorced and separated people. For people within the latter category the Family Law Act has removed most of the legal impediments to remarriage. This suggests that people’s reasons for living together without formal marriage are less associated with legal difficulties than in the past.

3.21 Nor do we think that the recorded increase can be accounted for simply by increased public visibility of an old institution (although it is possible that older people in long standing de facto relationships are now more willing to be included in official statistics). It seems clear that the economic conditions prevailing since 1974 ²¹and changing social attitudes over the last decade must be involved in the changes affecting recent trends in unmarried cohabitation This has significant policy implications for the direction of law reform Some of these implications are stated in paragraph 3.58.

3.22 In this section we present a profile of the demographic and socio-economic characteristics of de facto partners in Australia, comparing them with married people and in some cases with single people. This profile illustrates more fully the major economic issues and life-cycle processes sketched briefly in the Issues Paper, ²²and provides a basis for evaluation of legal policies. It is important to stress again however, that the information here produces a “snapshot” picture of de facto relationships. We are able to draw some inferences about life-cycle processes by putting together what is known about, say, the current age of de facto partners, and the length of time current relationships have lasted. However, there are no available studies which trace the history of relationships over time.

3.23 De facto couples are concentrated in the age group 20-29 years, where they constitute 7 per cent of all people and 13 per cent of people not currently married. The relative youthfulness of de facto partners in comparison with married people is clear from Table 3.4: 58 per cent of de facto partners are under the age of 30, compared with 18 per cent of married people-, 34 per cent of de facto partners are aged between 30 and 49, compared with 47 per cent of married people; and 8 per cent of de facto partners are 50 years and over, compared with 36 per cent of married people. This concentration in younger age groups is very similar to the British, United States, Swedish and Danish figures, ²³and has significant implications for the socioeconomic position of de facto partners (in particular, their access to income and property). However, since 42 per cent of de facto partners are over the age of 30, de facto cohabitation must not be seen as primarily a life-style of young, never married people. Older people, more likely to be separated or divorced, also contribute substantially to the numbers of de facto couples.

(individuals 15 years and over)

Age (Years)	Married		De Facto
	N	%	N	%

15-19	24,930	0.4	28,240	8.4
20-24	396,400	5.8	95,750	28.4
25-29	787,870	11.6	70,850	21.0
30-39	1,794,200	26.5	75,500	22.4
40-49	1,358,310	20.0	39,340	11.7
50-59	1,213,540	17.9	21,230	6.3
60 and over	1,205,370	17.8	6,410	1.9
Total	6,780,620	100.0	337,320	100.1

Source: ABS, Australian Families 1982, Unpublished Tables.

3.24 Table 3.5 shows the duration of Current de facto relationships: that is, those relationships which have not terminated. It does not provide a measure of the average duration of de facto relationships, which would require data on relationships which have been terminated. Of current relationships 39 per cent have been in existence for less than 2 years; 3 8 per cent have lasted for between 2-5 years; 13 percent have been in existence for 6-10 years; and 8 percent have existed for 11-33 years. It must be remembered that de facto relationships involve disproportionately higher numbers of young people, who are likely to have started living together more recently. In summary. approximately 59 per cent of current de facto relationships have been in existence for 2 years or more, while 43 per cent have continued for 3 years or more (the qualifying period for de facto widows under social security legislation).

Australia 1982

Duration	Couples living with Partner “as married”
	N	%

Less than 1 year	21,820	12.9
1 year	44,020	26.0
2 year	26,470	15.6
3 year	17,370	10.3
4 year	13,560	8.0
5 year	7,600	4.5
6-10 year	21,510	12.7
11-20 year	10,570	6.2
21-33 year	2,660	1.6
Do not know	3,820	2.3
Total	169,400	100.0

Source: ABS, Australian Families 1982, Unpublished Tables.

3.25 This pattern reinforces previous observations: namely, that there has been an increase in de facto cohabitation in the last 5 years (couples who started living together within the last 5 years constitute 77 per cent of all de facto couples); that the recent increase in the rate of cohabitation is an extension of a well-established practice; and that a significant proportion of current de facto relationships have been of long duration.

3.26 While 18 per cent of de facto partners have children who were born during their current relationship (Table 3.6), 36 per cent of de facto couples have dependent children living in their family (Table 3.7). These children were either born during the current relationship or are children of either partner from a previous marriage or relationship. Analysis of 1971 and 1976 census figures in comparison with data from the 1982 Family Survey shows a marked increase in the absolute numbers of de facto families containing dependent children, ²⁴10,407 families in 1971; 32,188 families in 1976; and 59,640 families in 1982. The number of de facto families with children highlights the importance of the parenting role for a significant proportion of de facto couples.

Table 3.6: De Facto Relationships by Numbers of Children Born in Current Relationship

Australia 1982

Number of Children	Women in a De Facto Relationship
	N	%

0 children	137,370	82.5
1 children	20,750	12.5
2 children	5,560	3.3
3 children	2,080	1.2
4 or more children	700	0.4
Total	166,460	99.9

Source: ABS, Australian Families 1982, Unpublished Tables.

3.27 While there has been an increase in absolute numbers, the proportion of de facto couples who have children has decreased from 61 percent in 1971 to 49 percent in 1976 and to 36 per cent in 1982. One of the major reasons for this decrease is the increasing proportion of de facto couples who have never been married, that is, young people whose relationships are less likely to have produced children or to involve the presence of children from a former relationship’s. ²⁵

Table 3.7: De Facto Relationships by Numbers of Dependent Children Living in the Family

Australia 1982

Numbers of Children	Women in De Facto Relationships
	N	%

No children	107,600	64.2
1 child	27,070	16.2
2 child	23,000	13.9
3 child	6,780	4.0
4 or more children	2,790	1.7
Total	167,240	100.0

Source: ABS, Australian Families 1982, Unpublished Tables.

3.28 The presence of children in more than one-third of all de facto relationships has significant policy implications. Our surveys of legal practitioners and welfare workers in New South Wales showed that problems concerning the maintenance and custody of children were among the most frequently occurring problems in respect of which clients in de facto relationships sought advice and assistance (paragraphs 3.67 and 3.73). We are not suggesting that de facto partners encounter legal problems in relation to children more often than married persons with children. We do suggest that the presence of children in a significant number of de facto relationships is important in view of the divided jurisdiction concerning maintenance, custody and guardianship of children (Chapter 15).²⁶It is clearly a high priority that adequate rules and procedures be established to deal with custody and maintenance of children of de facto relationships.

3.29 The pattern of educational qualifications for de facto partners is comparable to the pattern for married people. This is so despite the high incidence of young people among those living in de facto relationships. As with married people, 61 per cent of de facto partners have no formal educational qualifications; 29 per cent have a trade or apprenticeship qualification or other certificate or diploma (compared with 31 percent of the married); 7.5 percent have university degrees (compared with 6 percent of the married). These figures do not support the suggestion that the increase in the number of de facto relationships in the last decade is primarily the result of young, tertiary-educated people rejecting marriage as an institution. The tertiary-educated are not over-represented among de facto partners.

3.30 De facto partners are more likely than married people to be Australian-born (78 per cent of de facto partners compared with 71 per cent of married people), or to be born in an overseas English speaking country. Compared with married people, those living with a de facto partner are much less likely to have been born in a non-English speaking country (7.2 per cent compared with 17.1 percent). This finding may reflect two factors. First, close-knit, non-English speaking migrant communities are more likely to maintain conventional patterns of legally sanctioned marriage. Secondly, it is likely that Australian-born and other English-speaking residents are more willing, in the course of a survey to identify themselves as “living together”.

3.31 Table 3.8, showing religious affillation by marital status, is derived from the IFS sample survey of people aged 18-34 years. As a result it does not contain information on the religious affiliation of older de facto partners. The table shows that the pattern of religious affiliation for de facto partners under 35 is very similar to the pattern for single people who are living away from home. The pattern differs from that of married people, because a higher proportion of de facto partners claim no religious affiliation. About 26 percent of the de facto partners in the sample were Catholic, 40 percent were affiliated with other Christian religions, 4 percent were affiliated with a non-Christian religion and 30 per cent said that they had no religious affiliation. To a certain extent these findings are related to the age distribution of the categories of people surveyed. On average, single people were the youngest group; de facto partners were somewhat older, and married people (in particular, those with children) had the highest average age. It would appear, therefore, that religious affiliation is more pronounced for the older groups, who are in turn more likely to be married.

(Age Group 18-34 years)

	Single, Left Home	De Facto	Married No Children	Married With Children
	N=508	N=160	N=306	N=877
	%	%	%	%
Catholic	24.2	26.0	27.5	29.4
Other Christian	48.0	40.0	51.0	57.8
Non-Christian	2.8	4.0	2.0	2.5
No religion	25.0	30.0	19.6	10.3
Total	100.0	100.0	100.0	100.0

Source: Institute of Family Studies, Family Formation Project, Sample Survey Unpublished Tables.

3.32 We conclude that a very large majority (93 per cent) of de facto partners are either Australian-born or migrants from the main English-speaking countries, and that a large majority (66 per cent) express affiliation with the major Christian denominations. There is no evidence to associate de facto cohabitation with identifiable minority groups. Rather, it would appear to be a domestic relationship associated with the mainstream of Australian life.

3.33 We have used Australia-wide figures collected by the ABS and the IFS because they give us a basis for historical comparisons and comparisons with other countries. However, it is possible to examine aspects of the New South Wales situation in some detail. Figures from the ABS show the marital status for individuals 15 years and over in each of the Australian States and the Territories. It is clear that the pattern in New South Wales is almost identical with the pattern for the whole of Australia. In particular, the proportion living in de facto relationships is the same as the national proportion New South Wales, with 116,200 people in de facto relationships, contributes one-third (34.4 percent) of all persons in Australia living together “as married”. This is equivalent to the State’s share of the national population aged 15 years and over. In addition, the rate of cohabitation (that is, the number of de facto couples expressed as a proportion of all couples) is identical with the Australian rate (4.7 per cent). Similarly, de facto couples are younger than married couples (60 per cent are under 30, as are 58 per cent in the whole of Australia), and they are concentrated in the age group 20-29 years, where they constitute 13 per cent of all couples, as compared with 12 per cent nationally (Table 3.9).

3.34 The duration of de facto relationships in New South Wales shows a similar pattern to the Australian figures, except that in New South Wales a higher proportion of de facto couples have been living together for relatively long periods. A slightly smaller proportion of de facto couples have commenced living together in the last 5 years (73 percent, compared with 77 per cent nationally). A larger proportion have been living together for more than 10 years (12 per cent of couples compared with 8 per cent in the whole of Australia). This suggests that, while there has been an undoubted increase in de facto cohabitation in the last 5 years, stable, long-term de facto relationships are relatively common in New South Wales (Table 3.10).

3.35 There is therefore, close similarity between the characteristics of New South Wales de facto couples and those of couples living elsewhere in Australia. It follows that we can safely accept national figures on such issues as birth-place, religion, presence of children, educational qualifications, labour force status, income and housing occupancy (which we discuss later in this Chapter), as indicating the situation in New South Wales.

(individuals 15 years and over in the State of New South Wales)

Age (years)		Marital Status
		Married	De Facto	Total

15-19	N	9,660	11,750	21,410
	%	45.1	54.9	100.0
20-29	N	394,050	57,530	451.580
	%	87.3	12.7	100.0
30-39	N	628,040	19,260	647,300
	%	97.0	3.0	100.0
40-49	N	480,960	16,710	497,670
	%	96.6	3.4	100.0
50-59	N	433,650	9,260	442,910
	%	97.9	2.1	100.0
60 and over	N	434,310	1,680	435,990
	%	99.6	0.4	100.0
Total	N	2,380,660	116,200	2,496,860
	%	95.3	4.7	100.0

Source: ABS, Australian Families 1982, Unpublished Tables.

(couples living together in New South Wales)

Duration	Couples living with Partner “as married”
	N	%

Less than 1 year	9,370	16.0
1 year	12,860	22.0
2 year	7,140	12.2
3 year	5,030	8.6
4 year	5,440	9.3
5 year	2,660	4.5
6-10 years	8,890	15.2
11-20 years	4,540	7.8
21 years or more	1,230	2.1
Do not know	1,310	2.2
Total	58,470	99.9

3.37 In this section we analyse available information on four key issues which provide a good indication of the socioeconomic position of de facto partners. We compare their position with that of married couples, and in some cases with single people. The issues to be considered are: the presence of dependent children in the family, labour force status, income, housing occupancy. The data we use in this section are derived from the ABS Family Survey conducted in 1982.

3.38 As we have seen the ABS Family Survey shows that 18 per cent of de facto families contain dependent children born during the current relationship, while 36 per cent of couples have dependent children living in the family. Within these relationships one partner, usually the woman will be primarily responsible for child care and other domestic duties. Studies have demonstrated that the responsibility of women for dependent children is associated with a significant reduction in their levels of employment particularly in full-time employment. ²⁷

3.39 Table 3.11 shows the number of dependent children living in the family, according to the marital status of the partners and the age of the woman. In all age groups it is clear that, even though 36 per cent of de facto couples have children in the household de facto cohabitation is much less likely than marriage to be associated with the presence of children. This is particularly so in the age group 20-29, which is the usual period for child-bearing: where the woman is aged 20-29 years, 30 per cent of de facto couples have children in their households (compared with 63 per cent of married couples). Where the woman in a de facto relationship is aged 30-39, dependent children are more likely to be present: 65 per cent of such families contain children, probably indicating the formation of relationships by people who are divorced or separated and who have children from their previous marriages. For married couples the figure in this age group is 91 per cent. Where the woman is aged 40-44, the proportion of families with dependent children falls to 40 per cent possibly suggesting that some of the children of the family are no longer dependent. Seventy-eight per cent of married couples in this age group have dependent children The finding that de facto cohabitation is generally less likely than marriage to be associated with the presence of children is consistent with accounts of fertility and cohabitation in Western Europe. ²⁸However, it is also clear from British statistics that couples living together after the woman has been separated or divorced are likely to have children present in the family. ²⁹

B. Labour Force Status: De Facto Partners, Married Couples and Never Married People

3.40 Table 3.12 suggests that the employment situation of de facto partners is similar to that of men and women who have never been married, with a high proportion of each group either working or seeking work. Both groups show higher unemployment rates and higher levels of participation in the labour force than married people. In interpreting these figures it must be remembered that unemployment rates ³⁰are an index not only of joblessness, but also of active jobseeking (in the definition of unemployment used by the ABS).High unemployment rates are associated with younger age groups (15-24 years) where the experience of recorded joblessness has been concentrated. The relatively younger ages of never-married people, and of de facto partners, therefore place them at greater risk of unemployment.

3.41 For both the de facto and the never married groups, the unemployment rate for men is more than three times higher than the unemployment rate for married men (9.6 per cent for male de facto partners, 11.6 per cent for never married men and 3.0 per cent for married men). The situation is similar for women: the unemployment rate for women living in de facto relationships and for never married women is double the unemployment rate for married women (15.0 percent for de facto partners, 14.8 per cent for never married women and 7.2 per cent for married women). In the current economic recession, de facto partners experience conditions of ‘ob scarcity similar to people who have never been married. ³¹

Table 3.11: Couples Living Together (married and de facto): Number of Dependent Children ⁽¹⁾and Age of Female Partner

Australia

Number of Dependent Children Present	Age of Female Partner (years)
	15-19		20-29		30-39		40-44		45 and Over
	Married
	N	%	N	%	N	%	N	%	N	%
None	13,300	64	255,200	37	84,700	9	81,700	22	1,135,600	81
One or more	7,400	36	431,200	63	833,700	91	286,300	78	267,900	19
Total	20,700	100	686,400	100	918,400	100	368,000	100	1,403,500	100

	De Facto
	N	%	N	%	N	%	N	%	N	%
None	14,800	73	58,100	70	12,200	35	6,500	60	10,900	90
One or more	5,500	27	25,200	30	22,800	65	4,400	40	1,200	10
Total	20,300	100	83,300	100	35,000	100	10,900	100	12,100	100

Source: ABS, Australian Families, 1982, Preliminary (cat. No.4407.0 1982), Derived from Table 5.

	Employed		Unemployed		In the Labour Force (Employed and Unemployed)		Not in the Labour Force		Total		Unemployment Rate (1)		Labour Force Participation Rate (2)
	N		N		N		N		N		%		%
	M	F	M	F	M	F	M	F	M	F	M	F	M	F

Married	2,714,420	1,447,830	80,430	112,500	2,794,850	1,561,340	632,390	1,792,040	3,427,240	3,353,380	3.0	7.2	81.5	46.6
De Facto	147,340	104,710	15,590	18,490	162,930	123,200	7,930	43,260	170,860	166,460	9.6	15.0	95.3	74.0
Separated	56,720	46,160	6,200	10,710	69,920	56,870	12,910	73,170	75,830	130,040	9.9	18.8	83.0	43.7
Divorced	93,300	89,500	6,120	13,450	99,410	102,950	30,900	97,910	130,310	200,860	6.2	13.1	76.3	51.3
Widowed	29,350	57,750	4,410	4,440	33,760	62,180	90,070	500,310	123,830	562,500	13.1	7.1	27.3	11.1
Never Married	1,045,070	647,830	138,350	112,940	1,192,420	760,760	147,370	203,250	1,339,800	964,010	11.6	14.8	89.0	78.9

3.42 The labour force participation rate (the proportion of people who are either employed or actively looking for work) for men aged 20-50 years is 95 per cent for men living in de facto relationships, higher than for any other marital status group. The corresponding figure for women in de facto relationships is 74 percent which is also high: 27 percentage points higher than for married women and only 5 percentage points lower thin for never married women. This high participation rate for women in de facto relationships must be related to the fact that by comparison with wives, fewer of them in all age groups are caring for dependent children.

3.43 A more detailed analysis of the labour force situation of men and women in de facto relationships, compared with married and never married people in the same age groups, is provided in Table 3.13. We summarise some of the findings in the following paragraphs.

3.44 Of all de facto partners, 8 per cent are in the age group 15-19 years (28,240 people). Within this age group, de facto partners are more likely to be unemployed than are married people and single people. Almost one fifth of the men and more than one quarter of the women are unemployed. Single men and women also experience high levels of unemployment (15 per cent and 18 per cent respectively are unemployed), but employment levels are higher for single women than for women in de facto relationships, almost 30 per cent of whom are not in the labour force. Within this age group both married women and women in de facto relationships have low labour force participation rates in comparison with single women, because of early child care responsibilities for one third of wives and for more than one quarter of women in de facto relationships (Table 3.11). These low participation rites also indicate hidden (that is, unrecorded unemployment for many young women. Only a very small number of men under the age of 20 years are married, and all are employed.

3.45 A different pattern of employment is evident for de facto partners in the age group 20-29 years (166,595 persons, which accounts for almost 50 per cent of all de facto partners). The proportion of male de facto partners who are unemployed (11.4 per cent) is greater than for married men (4.3 per cent) and single men (9.4 per cent): and the proportion of women de facto partners who are unemployed (8.7 per cent) is greater than for wives (5.3 per cent), and closer to the figure for single women (10.6 per cent). Women in de facto relationships are much more likely than wives to be either employed or actively looking for work: only 10 per de the labour force compared with 44 per cent of wives. This is consistent with the presence of dependent children for 30 per cent of female de facto partners by contrast with 63 per cent of wives in this age group (Table 3.11). Thus, the employment pattern for de facto partners in the age group 20-29 years is very similar to the pattern for men and women who have never been married, but differs from the employment pattern of married people within that group.

3.46 For people under the age of 30, then, de facto relationships are less likely than marriage to involve dependent children, and more likely to be characterised by the partners’ economic independence (or interdependence) rather than by female dependence. This latter point can be inferred from the labour force participation rates for women. Women “not in the labour force” are likely to be economically dependent on their partner. In comparison with married couples, however, de facto partners have a higher incidence of unemployment. The evidence suggests that de facto cohabitation has become increasingly common during a period of high unemployment and economic insecurity, which has mainly affected people in the age group traditionally associated with marriage and family formation. It would be incorrect to conclude that all or most de facto partners are disadvantaged in the labour market since 86 per cent of men and 72 per cent of women in de facto relationships are employed. The relatively low unemployment rate for married men suggests, however, that formal marriage continues to be based on the husband’s job security, a relationship which has been identified in previous periods of Australian history. ³²This finding supports the view expressed in the Issues Paper concerning the association between the increasing incidence of de facto relationships and the present climate of economic uncertainty.

3.47 In the age group 30-49 years (which accounts for 114,845 persons, or 34 per cent of all de facto partners) the employment situation changes. The employment pattern for men living in de facto relationships is almost identical with that for married men, although higher proportions are unemployed. The labour force participation rate for women living in de facto relationships in the age group 30-39 years is, at 70 per cent Much higher than the participation rate for wives (56 per cent). This is consistent with the presence of dependent children for 65 percent of the female de facto partners compared with 91 percent of the wives (Table 3.11). In the age group 40-49 years, when employment levels rise for all women living with a partner (indicating the easing of domestic and child care responsibilities), women in de facto relationships continue to have a higher level of labour force participation than married women in both age groups the unemployment rate for women de facto partners (averaging 14 per cent) is twice as high as the unemployment rates for married women and for single women indicating active job seeking, and a scarcity of job opportunities. ³³The much greater likelihood, in all age groups, for female, rather than male de facto partners, to be outside the labour force indicates that women’s responsibility for child care persists in de facto relationships, as in marriages.

3.48 In the age group 50 years and over (comprising 27,640 people, or 8 per cent of all de facto partners) people in de facto relationships are more likely than both married and single people to be in the labour force. This is marked so for women. The proportion outside the labour force is smaller for de facto partners mainly because they are younger: there where relatively few people over the age of 59 who identified themselves as living in de facto relationships.

Australia 1982

Age		Employed	Unemployed	Not in Labour Force	Total	Unemployment Rate (1)
		%	%	%	%	%

15-19 Years
MARRIED
Males	N=2,830	100	-	-	100	-
Females	N=22,090	35.1	10.3	54.6	100	22.7
DE FACTO
Males	N=7,200	82.2	17.8	-	100	17.8
Females	N=21,040	44.2	26.8	29.1	100.1	37.8
NEVER MARRIED
Males	N=404,540	76.8	14.8	8.4	100	16.2
Females	N=355,210	66.2	17.8	16.0	100	21.2
20-29 Years
MARRIED
Males	N=487,340	94.4	4.3	1.3	100	4.4
Females	N=696,940	50.8	5.3	43.9	100	9.4
DE FACTO
Males	N=83,410	85.6	11.4	3.0	100	11.8
Females	N=83,190	71.6	8.7	19.7	100	10.8
NEVER MARRIED
Males	N=654,210	83.6	9.4	7.0	100	10.1
Females	N=407,410	77.6	10.6	11.8	100	12.0
30-39 Years
MARRIED
Males	N=902,160	95.6	2.6	1.8	100	2.6
Females	N=892,040	51.5	4.5	44.0	100	8.0
DE FACTO
Males	N=41,850	93.3	5.6	1.1	100	5.7
Females	N=33,650	59.6	10.8	29.6	100	15.3
NEVER MARRIED
Males	N=120,630	84.1	6.3	9.6	100	7.0
Females	N=67,380	79.4	5.5	15.1	100	6.5
40-49 Years
MARRIED
Males	N=703,060	94.4	2.3	3.3	100	2.4
Females	N=655,250	57.3	3.7	39.0	100	6.0
DE FACTO
Males	N=22,750	91.5	5.9	2.6	100	6.0
Females	N=16,600	64.9	8.9	26.2	100	12.0
NEVER MARRIED
Males	N=54,950	78.8	7.9	13.3	100	9.1
Females	N=29,580	72.4	3.4	24.2	100	4.5
50 Years and Over
MARRIED
Males	N=1,331,840	54.4	1.5	44.1	100	2.7
Females	N=1,087,070	23.2	0.8	76.0	100	3.3
DE FACTO
Males	N=15,650	64.9	6.9	28.2	100	9.6
Females	N=11,990	42.1	4.4	53.5	100	9.5
NEVER MARRIED
Males	N=105,470	48.8	4.7	46.5	100	8.8
Females	N=104,420	20.7	1.6	77.7	100	7.2

Source: ABS, Australian Families, 1982, Unpublished Tables

3.49 The preceding analysis of dependent children in the family and of the labour force status of de facto partners allows four broad categories of de facto cohabitation to be identified. There are differences among these categories, according to the age and extent of labour force participation of the partners and the presence of dependent children.

3.50 We do not wish to give the impression that these four categories are separate and distinct. Rather they should be seen as a continuum in which the characteristics of cohabitation are determined in part by the age of the partners; their formal marital status; the presence (or absence) of dependent children, the labour force status of both partners, and the extent to which women are outside the labour force, usually because of their domestic and child care responsibilities. The categories illustrate some of the characteristics associated with cohabitation at different stages of the life- cycle. They also help identify the issues which should be considered by policy makers.

3.51 There are no figures available on incomes of de facto partners across all age groups. For the group aged 18-34 years we have data from the Family Formation Project of the IFS. Since for men income levels rise with increasing age (at least in this age group), it is not surprising to find that men in de facto relationships earn less than married men. This is partly because the married group, on average, are older. For women, for whom in general income levels are determined by the extent of child care responsibilities and hence access to employment, de facto partners have higher incomes than married women with children. As we have seen, a smaller proportion of women in de facto relationships, compared to married women have the care of dependent children in this age group. Overall, women in de facto relationships earn less than married women without children, a finding which highlights the crucial importance of child care responsibilities in determining income.

3.52 Younger de facto partners tend to have an income pattern very similar to that of single people of similar age, and to have lower incomes on average than married men and childless wives. Women’s access to income and their level of income is less than that of mean related in part to their responsibility for house- work and child care and their consequent lower rates of labour force participation and the greater likelihood that they will be working part-time.

3.53 In conclusion female de facto partners, when compared with wives are less likely to be responsible for the care of dependent children and have higher labour force participate response ton rates in all age groups. But in comparison with male de facto partners, they have consistently lower labour force participation rates and consistently lower levels of full-time employment and reduced access to income, ³⁴indicating both the persistence of women’s responsibility for child care and housework and higher levels of female unemployment.

3.54 It would be incorrect, however, to conclude from the ABS Family Survey and the IFS Family Formation Project that all de facto partners in their own relationships follow the traditional domestic division of labour characterised by women’s withdrawal from the labour force, their reduced access to earned income and their consequent financial dependence. Studies conducted by Antill and Cunningham and Sarantakos, ³⁵taken with the ABS data showing relatively high labour force participation rates for women de facto partners aged 20-29, suggest that a significant proportion of de facto relationships are characterised by the economic independence or interdependence of the parties, particularly where there are no children Antill and Cunningham found that de facto partners were more likely than married people to express awareness of issues concerned with women’s rights and to attempt in their own relationship to change the traditional gender divisions of house work and bread-winning tasks. However, where there are children within the relationship, it seems that the traditional division of tasks tends to re-emerge, resulting in women’s reduced labour force activity and reduced income.

3.55 Figures compiled by the ABS show that couples living in de facto relationships have a much lower rate of home ownership and home purchase in comparison with married couples: 34 per cent of de facto couples are living in homes which are being purchased or owned outright, in comparison with 81 per cent of married couples. A further 56 per cent of de facto couples are private tenants, 3 per cent are tenants in public authority housing, and 5 per cent are living in rent-free accommodation. By comparison, 11 per cent of married couples are private tenants, 4 per cent are tenants in public housing and 3 per cent are living in rent-free accommodation.

3.56 The apparently low rate of home ownership for de facto couples is, no doubt related to their relative youth and to their labour force and income position. As we have seem nearly two thirds of de facto partners have not been married previously. Their employment position and pattern of income distribution are, for those under 30, comparable with single people. The financial situation of young de facto couples (which, in general is less secure than that of married couples) is clearly important in explaining their relatively high rates of tenancy and lower rates of home ownership. While there is no direct evidence on this issue, it also appears likely that, in the early years of a relationship, partners may not have reached a stage of emotional commitment at which they are prepared to make the necessary long-term financial commitment involved in a substantial purchase.

3.57 Although no statistical information is available, it is probable that the 34 per cent of de facto couples who are home owners or purchasers tend to be older (that is, over 30), and to have been married previously. Other sources of information’ suggest that de facto partners may live together in a home owned by one of the partners (in some cases a former matrimonial home), or in a jointly owned home. Although home ownership is less common for de facto partners, Our survey of legal practitioners (paragraph 3.67) showed that disputes over the distribution of property (usually housing) constituted one of the major problems in respect of which people living in de facto relationships sought legal advice.

3.58 The major policy implications of this analysis of the socio-economic position of de facto partners are these:

3.59 People living in de facto relationships do not necessarily encounter legal problems any more often than married persons. However, knowledge of the kinds of. legal problems experienced by de facto partners is essential for an informed evaluation of the current law.

3.60 Decisions of courts in cases involving disputes between de facto partners are an obvious source of information and accordingly we have looked at a large number of reported and unreported judgments. But these cases probably represent only the tip of the iceberg. There is no ready means of determining the total number of cases involving de facto partners which are commenced in all courts in New South Wales. More to the point, many potential disputes or claims do not enter the court system. This may be because de facto partners do not perceive the problem as involving a legal issue, or do not have access to legal advice. If they do receive advice, they may be told that they have no claim under existing law, or the dispute may be settled by agreement before litigation is commenced.

3.61 We thought it important to attempt some assessment of the extent of de facto partners’ contacts with the legal system, other than in the form of cases decided by superior courts. Information on explicit legal problems, or on problems which might have a legal aspect was collected from five sources.

3.62 A sample of legal practitioners was drawn from the following sources-those attending a seminar on “The Law and De Facto Relationships” held by the Commission in April 1982; a random selection of members of the Western Suburbs Law Society, the Eastern Suburbs Law Society, the Newcastle Law Society, the Wollongong and District Law Society and the Southern Tablelands Solicitors’ Association, and all members of the Family Law Practitioners’ Association.

3.63 Two hundred and ninety four legal practitioners replied to the questionnaire which was either mailed to them or distributed at the seminar (a response rate of 63 per cent). Of the respondents, 56 (19 per cent) indicated that they had not been approached in the previous twelve months for legal advice about a problem arising out of a de facto relationship. The following account of the survey s findings is based on information provided by the remaining 238 legal practitioners who had advised on de facto matters in the preceding twelve months (referred to below as “the sample”).

3.64 At the outset it must be emphasised that the findings of this survey cannot be considered representative of the practices of legal practitioners throughout the State. What these findings do provide is an indication of the types of legal issues associated with de facto relationships which clients have referred to the practitioners in the sample, the frequency with which such problems were referred to them and those practitioners own attitudes to the adequacy of existing laws in this area.

3.65 Of the 238 legal practitioners in the sample who had advised on matters connected with de facto relationships in the preceding twelve months, the vast majority (82 per cent) were solicitors in private practice, 10 percent were barristers, and 7 percent were solicitors in legal centres. Among the respondents who indicated their main areas of practice, the most common were family law, followed by conveyancing and litigation More than half of the sample were located either in the Sydney central business district (27 per cent), or in Sydney’s inner and outer suburbs (31 per cent). The remainder were located in other New South Wales cities (27 per cent) and in country towns (15 per cent).

3.66 Approximately half the sample indicated that they had advised between 1 to 5 clients on matters concerned with de facto relationships in the previous twelve months; one quarter of the sample had advised between 6 to 10 clients; and a further quarter had advised more than 10 clients. A tenth of the sample indicated that more than 20 clients had sought legal advice on de facto problems in the last year. It is significant that most of the sample (90 per cent) indicated that more than half of their clients were women.

3.67 Legal practitioners were asked to indicate the frequency with which they had advised on specific legal problems arising out of a de facto relationship. They were also asked whether the problem arose while the relationship continued, after separation or after the death of a partner. Advice was most commonly sought by clients who had separated from their partner or who were considering separation, and the most frequently occurring problems were claims relating to property and maintenance, followed by problems relating to the custody, guardianship and maintenance of children Advice was also sought, but less frequently, on problems of domestic violence and on cohabitation contracts. Clients who were in a continuing de facto relationship were also most likely to seek advice on issues of property and maintenance, and on issues relating to the custody, guardianship and maintenance of children. Problems of domestic violence, advice on cohabitation contracts and on matters of succession on the death of a partner were also referred by clients in a continuing relationship, but with less frequency than matters relating to property and maintenance, and matters relating to children. The sample of legal practitioners indicated relatively few instances of advice being sought by people whose partner had died. As would be expected, all clients in this category were concerned with problems relating to succession on death including claims for provision from the estate of the deceased and property claims against that estate.

3.68 In summary the main legal problems concerning de facto relationships referred to the legal practitioners in the sample were:

3.69 Asked for their opinion on the laws relating to de facto relationships, a significant majority of legal practitioners in the sample (80 per cent) indicated dissatisfaction with the current state of the law. In particular, existing property laws were most commonly identified as unsatisfactory and in need of reform. Issues relating to custody and access of children, succession on death and the problems created by overlapping state and federal Jurisdictions were also cited as matters of concern.

3.70 The sample used in this survey comprised a list of members of the Australian Association of Social Workers in New South Wales, staff of the district offices of the Department of Youth and Community Services, and welfare workers attached to Women’s Refuges. The choice of the sample was not intended to be representative of social workers’ and welfare workers practices. The intention was to collect information on the nature of problems arising from de facto relationships which people refer to the several points of entry into the welfare system.

3.71 Of the 134 welfare workers who replied to the questionnaire and who had advised clients on problems arising out of a de facto relationship in the previous twelve months, 30 per cent were employed in health related services, 20 per cent in the district offices of the Department of Youth and Community Services, a further 17 per cent in other agencies of State and Commonwealth government, 20 per cent in women’s refuges, 10 per cent in voluntary agencies and 3 per cent in private practice. The majority of respondents were located in Sydney. 43 per cent were in the city and inner suburbs, 34 percent in the outer suburbs and the remaining 23 per cent were located in other New South Wales cities and country areas. ³⁷

3.72 Forty per cent of the sample had advised from 1 to 10 clients in the preceding year on matters arising from a de facto relationship. A further 40 per cent had advised 11 to 50 clients, and 20 per cent had advised more than 50 clients, One third of the sample indicated that they were approached “very often” for advice on de facto matters, that is, they saw one or more clients each week. To an even more marked extent than was noted by legal practitioners, clients of welfare workers seeking such advice are likely to be women. Three quarters of the respondents noted that over 80 per cent of their clients in this category were women. This is partially a reflection of a general tendency for women rather than men to be clients of the government and non-government welfare systems. But since the clients of legal practitioners seeking advice on de facto matters were also more likely to be women it is fair to conclude that the problems arising from de facto relationships are more likely to induce women rather than men to seek assistance and advice of either a legal or a welfare nature. It should be added that any division into “legal” or “welfare” problems is somewhat artificial since legal problems often entail a welfare component (for example, problems of maintenance), and problems which clients define as a welfare problem (for example, protection from domestic violence) also raise significant legal issues.

3.73 Welfare workers in our sample were most likely to be approached for advice by clients who had separated from a de facto partner, or who were in the process of separation. Problems relating to property and the support of the client, and those concerning maintenance and custody of children were the most common. Problems relating to social security entitlements and to domestic violence were also raised, but less frequently. Clients living in a continuing de facto relationship also sought advice on matters relating to property and personal maintenance, maintenance and custody of children, and to a lesser extent, problems of domestic violence. Social security issues arose somewhat more frequently among clients in this category. Welfare workers were less likely than are lawyers to see clients whose de facto partner had died. The problems arising for these clients were predominantly connected with succession to property.

3.74 In summary the main problems concerning de facto relationships which were referred to our sample of welfare workers were:

3.75 Asked to point to the factors which they thought led to their client need to seek assistance, the sample of welfare workers indicated, almost unanimously, that the clients lack of knowledge of the rights and obligations of de facto partners had been a contributing factor. Three quarters of the respondents indicated that further contributory factors included legal rules which do not give the same protection to de facto partners as to married persons, and the rules regulating eligibility for social security benefits. A substantial minority of the welfare workers in the sample indicated that they themselves were uncertain of the legal position of de facto partners and their families.

3.76 The results of these two surveys indicate that substantial numbers of people seek professional assistance from legal practitioners and welfare workers on matters connected with their de facto relationships. Advice can be sought at various stages of the relationship, but most frequently after the parties have separated. Clients seek advice most frequently on claims concerning property and maintenance and in relation to the custody, guardianship and maintenance of children.

3.77 There can be little doubt from the evidence of both surveys, that it is predominantly women who seek advice on legal and welfare problems arising from de facto cohabitation A significant majority of the legal practitioners indicated dissatisfaction with the current laws regulating the property claims of de facto partners, and also expressed concern with issues relating to custody and access of children and the problem of divided jurisdictions in the area of family law. The majority of welfare workers indicated that their clients lacked knowledge of the rights and obligations of de facto partners and were affected by rules which do not provide the same protection to de facto partners as to married persons.

3.78 In the following paragraphs we present information derived from 27 case studies of people who were living or who had lived in a de facto relationship. The studies are based on interviews with people who volunteered to be interviewed by the Commission and with those who attended the ‘Open-House’ conducted by the Commission (paragraph 1.14). These interviews provide further information, albeit of an impressionistic kind, about the nature of the legal problems and inquiries which arise out of de facto relationships. They also show the partners own perceptions of these matters.

3.79 People living in a continuing relationship (15 of the people interviewed) perceived the major legal problem to be the need for clarification and protection of their respective property rights. In this group the period of cohabitation ranged from 2 to 11 years, and property held by the parties included the home and, in some cases, business interests.

3.80 Most interviewees believed that cohabitation contracts should be legally recognised and enforceable, and that partners should be able to use them to express and protect their respective interests. Women in this category were particularly interested in cohabitation contracts because of their perception that New South Wales property laws do not provide them with the same protection as married women have under the Family Law Act.

3.81 Most particularly the women also believed that State property laws should recognise partners’ respective contributions to the financial assets of the couple.

3.82 There was a unanimous view that the rights and obligations of de facto partners require clarification and that information should be widely disseminated through community education programs. Few were aware of their legal position in relation to wills, intestacy, accident compensation and superannuation.

3.83 Where a couple had children of the relationship or were contemplating having children, there was concern over the status of children and the custody and guardianship rights of the respective partners. One recurring issue was the partners concern about their status as each others “next-of-kin” both on death of a partner and in their dealings with third parties, for example, relatives, financial institutions, hospitals and nursing homes. There was concern that the status of de facto partners was ill defined, their rights and obligations unclear and their contributions to the relationship not as likely to be recognised as those of married people.

3.84 Interviews with people who had separated, or were intending to separate, can be divided into two categories. First, those where disputes over property settlement constituted the major legal issue (6 cases) and, secondly, those where the legal welfare concerns confronting the female partner were protection from domestic violence, maintenance of self and children, clarification of matters relating to custody and access of children, and homelessness (6 cases).

3.85 Where property settlement was the major issue, typically both partners were employed and had acquired property in the form of housing and sometimes business assets. The duration of cohabitation ranged from 7 to 12 years. Partners in this situation were concerned about recognition of their respective property rights, and women in particular believed that their contributions would not be taken adequately into account.

3.86 The women who had experienced domestic violence did not mention claims to property in housing or business, but they did indicate problems of ownership of personal property (such as household furniture and appliances) and of money in Joint bank or building society accounts. The duration of cohabitation for this group was from 1 to 7 years. All the women had dependent children, were in receipt of supporting parents benefit as the only source of income, were temporarily resident in women’s refuges and were, in effect, homeless. All were hoping to be placed in public authority housing, so that they would not have to return to their previous domestic situation where they feared further violence. Most women in this category did not intend to seek maintenance for their children from their former partner. The reasons they gave were that they did not believe that he could or would pay, they feared further assault, and they placed greater trust in the security of government benefit It was unusual for women in this situation to define their maintenance/housing problems as legal matters, but they did see protection from domestic violence as a legal issue and sought the same protection as that available to married women.

3.87 We asked chamber magistrates at a representative selection of 23 court houses distributed throughout the Sydney area and other cities, towns and rural districts to record all the requests for advice received over a four week period in June-July 1982, from people in de facto relationships. (Chamber magistrates are court officials attached to Courts of Petty Sessions, who provide a well- known legal advice service). Chamber magistrates were asked to assign these inquiries to one of 10 categories of problem. All courts except one reported receiving some inquiries on de facto matters, with the busiest court recording 40 inquiries over the four weeks. In all 288 inquiries were recorded.

3.88 By far the largest number of inquiries related to custody, access or maintenance of children - 40 per cent of all inquiries. We made no attempt to assess at what stage in the relationship the inquiry was made, nor to differentiate between children born to de facto partners and other children living in the household. It is possible that some of these 116 inquiries did not arise out of de facto relationships in the sense in which we use the term but relate to custody and maintenance problems of ex nuptial children.

3.89 The next most frequently referred problems were domestic violence (24 per cent),and matters related to possession of personal property, and ownership or occupation of a house or flat (property matters broadly defined accounted for 24 per cent). Inquiries were also reported in relation to liability for a partner’s debts, social security matters, and maintenance for self or partner.

3.90 Because of the rather haphazard nature of this sort of record-keeping exercise it is not possible to analyse the results with any precision. But we are satisfied that the rough figures show that substantial numbers of people in de facto relationships approach chamber magistrates for assistance. The most frequently sought advice relates to children, property and protection from domestic violence.

3.91 A consistent pattern emerges from the surveys of legal practitioners, welfare workers and chamber magistrates, and the interviews with de facto partners.

1. New South Wales Law Reform Commission, Issues Paper De Facto Relationships (1981), pp.14-22.

2. We are very grateful to the ABS for generously making available preliminary results of the Family Survey.

3. We are very grateful to Dr. Don Edgar, Director of the Institute of Family Studies, for making the results of the Family Formation Project available to us.

4. The form of the question on marital status in the ABS Family Survey Questionnaire was:

One of the main interests of this survey is to measure the number of different marriage and family living arrangements in Australia.

The preliminary report of the Family Survey is titled: ABS, Australian Families 1982, Preliminary (Cat No.4407.0, December, 1982).

6. E D Macklin, “Non Traditional Family Forms: A Decade of Research”, 42 Journal of Marriage and the Family, (1980); P. Glick and G.B. Spanier, “Married and Unmarried Cohabitation in the United States”, 42 Journal of Marriage and the Family, (1980); J. Trost, Unmarried Cohabitation (Vasterad, 1979), A. Brown and K Kiernan, “Cohabitation in Great Britain: Evidence from the General Household Survey”, Population Trends, 25. (1981).

8. New Zealand Census, 1981. Tables made available to the Commission by the New Zealand Department of Statistics.

11. In the Issues Paper we estimated that, on the 1976 Census figures, about 45 per cent of households comprised of de facto couples were “headed” by a never-married person. This compares with 63 per cent in the 1982 figures. De Facto Relationships, p.17.

12. The situation in Britain is very similar. The General Household Survey (1979) showed that 8 per cent of single women, 16 per cent of separated women and 20 per cent of divorced women aged 18 to 49 years were living with a partner. A. Brown and K Kiernan, note 6 above, p.3. And see also note 11 above.

14. E Evatt R Watson and D McKenzie, “The Legal and Social Aspects of Cohabitation and the Reconstituted Family as a Social Problem”, in J M Eekelaar and S N Katz (eds), Marriage and Cohabitation in Contemporary Societies (Toronto, 1980), pp.398-407, at p.400.

16. For evidence of stable, long-lasting marriage-like relationships in earlier period among poor rural populations or poor urban working class people, see P Lasiett K Ooesterveen and P M Smith (eds.) Bastardy and its Comparative History, (London, 1980); PP Newcomb, “Cohabitation in America: An Assessment of Consequences” in 41 Journal of Marriage and the Family, (1979), pp.597-603, W O Weyrauch “Metamorphosis of Marriage: Formal and Informal Marriages in the United States” in J M Eekelaar and S N Katz (eds.), note 14 above; J Trost, “A Renewed Social Institution: Non-marital Cohabitation”’, 21 Acta Sociologica, (1978), pp.303-315; J Trost, note 6 above.

17. J Caldwell, “Long Term Perspectives on the Australian Family” in D Davis et al (eds.) Living Together Family Patterns and Life-Styles, (Australian National University Canberra, 1980), pp.17-25.

18. P. McDonald, Marriage in Australia: Age of First Marriage and Proportions Marrying 1860-1971, (Australian National University, 1974).

19. K Jupp, “The Effect of the Family Law Act 1975 on the Institution of Marriage and the Family”, in Joint Select Committee, Report on the Family Law Act, (1980), vol.2, Appendix 3, p.27.

20. A Jordan, As his Wife. Social Security law and policy on de Facto Marriage, (Research paper No.16 Department of Social Security, Canberra, 1981). The legislation is discussed in detail in Chapter 4.

21. The year 1974 was a watershed in terms of marriage rates and unemployment rates: De Facto Relationships. p.18.

24. In the 1971 and 1976 census, dependent children were defined as children under the age of 16 years, and full-time students aged 16-20 years, In the 1982 Family Survey. Dependent children were defined as children under the age of 15 years, and full-time students aged 15-20 years.

25. See note 11 above. Similarly, a slight decrease in the proportion of de facto families with children has also been reported for the USA. See E D Macklin, note 6 above: P Glick and G B Spanier, note 6 above.

27. B Cass, C Keens, D Wyndham, “The Costs of a Child: Direct and Indirect Costs” in A Graycar (ed), Retreat from the Welfare State, (Sydney, forthcoming).

28. P. Festy, “Aspects Demographiques de la Formation de la Famille en Europe Occidentale (with English Synopsis)” in J M Eekelaar and S N Katz. note 14 above.

29. A. Brown and K Kiernan, “Cohabitation in Great Britain: Evidence from the General Household Surveys”, Population Trends, 25 (HMSO, London, 1981).

30. The unemployment rate is defined as the number of persons unemployed (and actively seeking work) expressed as a percentage of the number in the labour force.

31. The position seems to be similar in the United States: P Glick and G B Spanier, note 6 above.

35. J D Cunningham and J.K Antill “Cohabitation: Marriage of the Future?”, (paper presented at ANZAAS Congress. Auckland, 1979): S. Sarantako, Living Together in Australia, (Riverina College of Advanced Education, unpublished manuscript, 1982).

36. For example. reported court proceedings, such as Seidler v. Schallhofer, [1982] 2 NSWLR 80. The Department of Social Security compiles records relating to beneficiaries; see A Jordan, note 20 above; and A Jordan, Sole Parents on Pensions, (Research Paper No.18, Department of Social Security, Canberra, 1982).

37. We cannot draw any conclusions from this locational pattern because a similar pattern emerged for welfare workers who had not advised on de facto matters. We can only surmise that either more questionnaires reached potential respondents in the Sydney area than in the rest of the state, or that the other urban centres and rural New South Wales are less well served with social welfare facilities.