• Introduction
• The Commission’s approach
• Principles guiding the Commission
• Laws applying to relationships
• Policy objectives of relationships laws
• Relationships law in other jurisdictions
• Issues for discussion

INTRODUCTION

2.1 As stated in Chapter 1, the major focus of this inquiry is on property and financial provisions in the Property (Relationships) Act 1984 (NSW) (“the PRA”) that apply on the breakdown of de facto and other close personal relationships.¹ However, it is impossible to make proposals for change without first examining the nature of the relationships which the law recognises. Currently, there are different laws and approaches that apply to marriage and de facto relationships, resulting in a variety of consequences. In this chapter, the Commission considers the rationale for and the validity of the different approaches, whether marriage is or ought to be the benchmark and whether the current approach is in keeping with the changing social context. The Commission also examines the way in which close personal relationships (other than marriage or de facto relationships) are regulated by the PRA.

2.2 In canvassing options for change, the Commission is guided by the need to recognise and respect the diversity of relationships and to facilitate a just and equitable resolution of financial matters after separation. The following three broad issues are raised for discussion:

• What policy approach should be adopted in attaching legal consequences to de facto relationships and other close personal relationships?
• Is the scope of coverage offered by the PRA adequate to ensure that those legal consequences are just and equitable?
• Is it necessary to make amendments to other legislation to ensure greater consistency in the way in which relationships defined under the PRA are recognised?

2.3 People form, or are born into, an indefinite number and variety of personal relationships throughout their lives. Given the complexity and diversity of personal relationships, there cannot be one law that deals comprehensively with all personal relationships: various laws regulate different aspects of different relationships in different ways. The focus of some laws is to recognise the financial dependence or interdependence between partners to a relationship, while other laws are more concerned with emotional connection. The most obvious examples are the laws that govern property and asset distribution on the breakdown of a marriage or similar relationship. Other examples extend far beyond the sphere commonly understood as “family law”. Being in a personal relationship may attract certain legal consequences in areas such as pension or superannuation entitlements, victims’ compensation, domestic violence, succession and guardianship laws, and the ability to make medical decisions on behalf of another. Those consequences may differ depending on whether the parties to the relationship are married or in a de facto relationship (referred to here as a partner relationship), and whether the parties are of the same or opposite sex. The consequences may differ again for people who are not in partner relationships, but are in other close personal relationships, such as siblings and parents and children.

Same issues, different legal recognition
2.4 Historically, legal recognition of partner relationships focused on marriage. Recently, however, there has been a marked increase in the numbers of people forming partner relationships but, for various reasons, not marrying.² In some cases, the law recognises that de facto relationships raise similar issues to marriage, given that both types of relationships are based on financial and emotional interdependence, and has attached the same legal principles applicable to marriage to various aspects of de facto relationships. For example, laws relating to custody, residency and contact arrangements for children are the same regardless of whether the parents are married or in a de facto relationship. In other areas, however, the law draws a distinction between marriage and other partner relationships.

2.5 A key example of different laws applying to marriage and de facto relationships are the laws that regulate the distribution of property and financial resources on the breakdown of a relationship. The Family Law Act 1975 (Cth) (“the FLA”) applies one set of rules to marriage breakdown, while the PRA applies another set to heterosexual and same-sex de facto relationships. Throughout this paper, the Commission asks whether, in terms of property and asset distribution, the current PRA promotes a sufficiently just and equitable outcome, or whether other provisions, such as those in the FLA, may be more appropriate. In doing so, the Commission is not engaging in a discussion about whether de facto relationships per se are better or worse than, or should be equated with, marriage for all purposes. The crucial issue is whether, given the fact that the circumstances of the breakdown of a marriage are similar, and often identical, to those in de facto relationships, a similar set of laws should apply.

2.6 The most straightforward way to address this issue would be to amend the FLA and extend its jurisdiction, so that it applied to heterosexual and same-sex de facto relationships in the same way that it applies to married couples.³ This course of action, however, would need to be discussed between the NSW and Commonwealth governments.⁴ As the current inquiry concerns only the operation of the PRA, the Commission considers it beyond the scope of this review to recommend a referral of power to the Commonwealth to legislate on de facto relationships.

2.7 The redistribution of property and financial resources is only one aspect of the Commission’s inquiry. The Property (Relationships) Legislation Amendment Act 1999 (NSW) (“the 1999 amendments”) which amended the PRA not only included same-sex de facto relationships within the scope of the Act’s property and financial provisions, but also effected consequential amendments to approximately 20 other statutes that refer to people’s partners.⁵ For example, a reference in the Family Provision Act 1982 (NSW) to “spouse” now includes heterosexual and same-sex de facto partner as defined in the PRA.

2.8 The 1999 amendments stopped short, however, of amending all NSW laws that refer to a “spouse” or “partner”. In this chapter, the Commission follows a purposive approach by examining the situations where the term “partner” or “spouse” is relevant and asks the question: is there any practical justification for legally distinguishing between married and de facto partners in each particular instance, or should the PRA be extended to effect further consequential amendments to appropriate legislation?

2.9 While partner or de facto relationships are the ones most likely to give rise to legal consequences based on financial and emotional interdependence, they are not the only ones. The 1999 amendments to the PRA broadened the scope of the Act to include close personal relationships within the definition of “domestic relationship”. The PRA defines a close personal relationship as one (not being a marriage or a de facto relationship) between two adults, whether or not related by family, who live together in circumstances where one or each of the parties provides the other with domestic support or personal care.⁶ This definition would cover such situations as an adult child caring for an elderly parent in the family home, or two friends who live in the same home, with one providing care and support for the other.

2.10 Some close personal relationships have a different focus from de facto relationships, and the points at which such relationships intersect with the law, or attract legal consequences, are less clear and predictable than is the case with de facto relationships. For example, parent/child relationships are very different from de facto relationships, and other factors such as family provision and succession laws would affect the entitlement of one party to the property and assets of the other in the event of the latter’s death. Nevertheless, the provisions of the PRA in terms of property and asset division apply to close personal relationships in the same way as they do to de facto relationships.⁷ Part of the Commission’s role in this inquiry is to examine whether, given the differences between close personal relationships and de facto relationships, the same legal consequences should apply.

PRINCIPLES GUIDING THE COMMISSION

2.11 From the approach outlined above, the Commission has devised the following principles which it considers should underpin not only the reforms proposed to the PRA in this Discussion Paper, but should guide reform of all laws governing aspects of relationships.

Recognising and respecting the diversity of relationships
2.12 The PRA has gone some way to achieving this with the extension of its coverage to same-sex couples and close personal relationships. It does not, nor should it, contain any express or implied hierarchy of relationships. All types of relationships contemplated under the PRA should be equally respected and recognised and the provisions of the PRA should be capable of broad application across the diverse range of relationships now covered by the Act.

Allowing parties to order their own financial affairs
2.13 The law should recognise and respect people’s right to order their own financial affairs subject to certain safeguards to ensure any agreement reached between them is voluntarily made and fair. In order to enable, and encourage, partners to make their own financial agreements, those agreements should be binding on the courts, provided they comply with certain criteria. However, it is equally important that exceptions be available to guard against unfair bargains.

Facilitating a just and equitable resolution of financial matters after separation
2.14 If parties cannot agree how to re-arrange or adjust their financial affairs amicably in their circumstances, the law should provide a system to facilitate a just and equitable outcome between them.

Providing a fair, timely and affordable process for resolving financial matters
2.15 Following from the previous principle, the system established under the PRA for delivering an outcome in disputed matters should be fair, accessible, timely and affordable.

An objects clause?

2.16 The Commission proposes that these four principles be included in the PRA as a clear expression of the objects of the legislation. Objects clauses in statutes are the modern day equivalent of a preamble and their use is becoming more prevalent.⁸ They are a statement of what Parliament intended the purpose of the legislation to be and how the Act was intended to operate. They are an aid to statutory interpretation, albeit not a definitive one.⁹ They may be used to resolve uncertainty or ambiguity but they do not, alone, represent the intention of a particular Act. Courts will still, in the first instance, look to the language of the specific section in question and to the whole Act to determine legislative intent.¹⁰

2.17 The new Part 19 of the Queensland Property Law Act 1974, which deals with the property rights of persons living in de facto relationships, contains an objects clause detailing seven major purposes.¹¹ Objects clauses have also been recommended by the Justice and Electorate Committee in relation to the reform of matrimonial property law in New Zealand.¹²

ISSUE 1

The PRA should contain an objects clause.

The objects of the legislation should be:

• to recognise and respect the diversity of relationships covered under the Act;
• to recognise and respect people’s right to order their own financial affairs subject to certain safeguards to ensure any agreement reached between them is voluntarily made and fair;
• to facilitate a just and equitable resolution of financial matters at the end of a domestic relationship; and
• to provide a fair, timely and affordable process for resolving financial matters at the end of a domestic relationship.
Do you agree? Why or why not?

Marriage

2.18 Under the Commonwealth Constitution, Parliament has the power to make laws with respect to marriage, and with respect to divorce and related matters.¹³ The Commonwealth Marriage Act 1961 (Cth) regulates who may marry and the formalities that must attend valid marriages, while the FLA regulates marriage breakdown and divorce, and related matters such as the care of children after relationship breakdown and the adjustment of property interests. Part VII of the FLA also deals with disputes involving children where their parents were not married, following a reference of powers by NSW (and all of the states and territories apart from Western Australia) in 1988. However, aside from issues affecting those children, the FLA is otherwise limited in its operation to those couples who are or have been married.¹⁴

De facto relationships

2.19 All other “family law” issues are matters within the jurisdiction of the State parliaments. As noted above, the 1999 amendments to the PRA effect a number of consequential changes to other NSW legislation.¹⁵ The amending legislation made two particularly significant changes to NSW law. First, the definition of de facto spouse was changed to cover same-sex cohabiting couples (in addition to heterosexual couples) in the parts of the PRA that deal with adjusting property interests when a relationship breaks down as well as for a number of other purposes in NSW law.¹⁶ Secondly, the amendments introduced the concept of “domestic relationship” for the first time in NSW legislation.

A “domestic relationship” is defined as:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).¹⁷

The legal meaning of “de facto relationship”

2.21 While the term “de facto relationship” is well established in a number of areas of Australian law (both federal¹⁹ and state) and is a term with wide currency in Australia, it has no settled legal meaning.

2.22 It has been estimated that in NSW, over 120 different pieces of legislation refer to “spouse”.²⁰ One need only look briefly at a few examples of laws, both federal and state, to see how complex and widespread is the legal regulation of family relationships. For example, the federal personal income tax system, while notionally based on the individual as the unit of taxation, has many aspects that are based on family relationships,²¹ while the social security system is premised on ideas about who should support whom.²² Our family relationships are also deeply implicated in our industrial or labour laws, for example, by regulating such issues as “parental” or “family leave” and providing who are “dependants” in the case of industrial injury or death.²³

2.23 In NSW, there are a number of different statutory definitions of “de facto partner”. Prior to the 1999 amendments to the PRA, “de facto partner” was defined in section 3 of that Act as:

(a) in relation to a man, a woman who is living or has lived with a man as his wife on a bona fide domestic basis although not married to him, and

(b) in relation to a woman, a man who is living or has lived with the woman as her husband on a bona fide domestic basis although not married to her.

2.25 Not surprisingly, this situation led to some confusion as to whether the term had the same, or a substantially similar, meaning across different areas of law. In one of the earliest cases under the De Facto Relationships Act 1984 (NSW) (as it was before 1999), the NSW Supreme Court formulated a “check list” of factors to consider if a relationship was a de facto relationship for those purposes.²⁹ In common with many statutory checklists, no particular weight is accorded to any one factor and there is much variation in how these criteria have been applied.³⁰

2.26 Since the 1999 amendments to the PRA, there are now at least six different statutory interpretations of the term “de facto relationship” in NSW. There are over 20 statutes in which a specifically gendered definition is still used, 20 statutes where the 1999 (ungendered) definition is used, three more where same-sex partners are included but the language used is different from that in the PRA,³¹ while several other statutes refer to but do not define “de facto relationship”.³² In addition, various federal laws that also apply to residents of NSW use a variety of other definitions for such purposes as social security, taxation, immigration, federal education allowances, family law and others. So while the term “de facto relationship” has become common parlance in Australia, its meaning is anything but common and depends almost entirely upon the statute applying.

The distinction in treatment between marriage and de facto relationships

2.27 While both marriage and de facto relationships are similar in that they are both intimate personal relationships, there is a significant discrepancy in the legal approach between marriage and de facto relationships which results in different outcomes for people depending on which relationship they are in.

2.28 It is widely thought that there are only limited ways in which legal regulation affects families, and that this occurs only or mainly through laws such as the FLA and the PRA. However, as the following scenario illustrates, the law constructs, regulates, affirms or denies family relationships in a myriad of ways.

Alex and Dale have been living together for six years. When they met, Alex had a child, Jaz, then aged 8. Alex and Jaz moved in with Dale who shared the care of Jaz with Alex. Dale owned the house they were living in and wanted to put it in Dale’s and Alex’s joint names. However, they found that this would cost a significant sum in stamp duty so decided against doing so until they were in a better financial position. Unfortunately, before they did so, Dale was involved in a serious, and ultimately fatal, car accident. While Dale was in a coma, a number of decisions needed to be made about medical treatment. Dale eventually died and there were then questions about organ donation and funeral arrangements. Dale had not made a will.

 

2.29 In the example above, what happens after Dale’s death will depend on a number of factors, not least the sex of the people involved. If they were a heterosexual couple, they would not have had to pay stamp duty to transfer the property into joint names. If they were married, Alex would inherit under the law of intestacy (the law that determines what happens to a person’s estate when he/she hasn’t made a will).³³ If they were a heterosexual couple living together in a de facto relationship, and Dale did not have a “legal” spouse, then Alex would inherit as they had lived together for not less than two years prior to the death. However, if they were both women, or both men, then, until 1999, Alex would not have been able to inherit under intestacy and might have had to resort to complicated legal proceedings to establish a claim to any part of the value of the property. That situation was eased from September 1999 when amendments to the Wills Probate and Administration Act 1898 (NSW) extended the definition of de facto spouse to include couples in same sex cohabiting relationships. Now the sex of Alex and Dale will no longer determine their entitlement in this instance. Even so, there are still many laws in NSW that would draw that distinction.

Medical decision making
2.30 Prior to Dale’s death, a number of medical decisions had to be made. As Dale was unable to make those decisions, some other person had to do so. What would be Alex’s status in relation to making decisions about Dale’s treatment? This is a particular problem if there is a dispute between, say, Dale’s parents or siblings on the one hand, and Alex on the other.³⁴

Decisions arising on death
2.31 The same situation applies to funeral arrangements and important decisions such as organ donation. Is it for Alex to make those decisions, or members of Dale’s biological family?

What of Jaz?
2.32 As Alex’s child, there will be no issue about the future care of Jaz. However, there is also no possibility of Jaz inheriting any part of Dale’s estate, in the absence of a valid will making provision for that, since Jaz was not a biological or adoptive child of Dale. But suppose it had been Alex who was killed, not Dale. Dale may be the only parent other than Alex that Jaz has known, but if there is a dispute between Dale and Alex’s surviving biological family, there is no necessary assumption that Jaz will remain in the care of Dale. We look at issues involving children and, in particular, the relationship between children and non-biological co-parents, in Chapter 3.

POLICY OBJECTIVES OF RELATIONSHIPS LAWS

2.33 As stated above, different legal approaches to particular aspects of various relationships can give rise to different consequences. This indicates that the policy behind various laws differs depending on the purpose of those laws. From the time that secular marriage first became widely available,³⁵ marriage has been presumed to attract certain legal consequences. One policy approach has been to extend that presumption to other relationships that are seen as analogous to marriage.

2.34 This currently occurs in some areas of the law. For example, the Social Security Act 1991 (Cth) has for many years treated couples living in heterosexual relationships as if they were married for the purposes of assessing entitlement to certain payments: presumably on the assumption that their income and assets are pooled, and that the resources of one party are available for the support of the other.³⁶ The Social Security Act 1991 (Cth) uses the expression “marriage-like relationship” to describe a de facto relationship. The Act sets out a list of statutory indicia to which a decision-maker must refer in order to decide whether someone is to be treated as living in a marriage-like relationship.³⁷

2.35 In succession law, there is a rule that states “marriage revokes all former wills”, that is, that any will made prior to a person’s marriage ceases to have effect after they marry.³⁸ Conversely, entering into a de facto or close personal relationship does not automatically revoke a will. Apparently underpinning this rule is the presumption that, as well as being a legal contract, a marriage is a person’s primary relationship, and that that relationship takes precedence over all others, unless there is clear evidence to the contrary (such as a will made after marriage that confirms a testamentary intention to benefit someone other than a spouse).

2.36 In evidence laws over the years, there have been various restrictions on the competence and the compellability of spouses concerning their ability to give evidence against the other.

2.37 The Law Commission of Canada noted that the historical basis for the non-compellability of spouses had all but disappeared. The current rationale appears to be the preservation of martial harmony.³⁹ While noting that this is a valid objective, the Law Commission recommended that the rule on compellability should be extended to include other close personal relationships.⁴⁰

2.38 In Australia, each State until recently had statutory provisions limiting the competence and compellability of spouses in relation to evidence against the other in criminal proceedings.⁴¹ As part of its broad-ranging inquiry into evidence in 1984, the Australian Law Reform Commission recommended broadening the category of non-compellable witnesses to include parents, children and de facto spouses of the accused.⁴² In a forceful dissent, Justice Michael Kirby (the then Chairperson of the ALRC) raised a number of policy concerns about that recommendation.⁴³ As many of the issues he raised go to the heart of the issues involved in this current reference, they are discussed in some detail here.

2.39 Justice Kirby’s view was that the “right to object to giving evidence should be available to any person who is in an intimate personal relationship with the defendant, whether of blood or affection”. He considered that the four categories chosen by the majority were “at once too narrow and insufficiently sensitive to the variety of human relationships which the wider statement of exemption is designed to accommodate”. He noted that the categories proposed did not even provide protection for the “nuclear family” – for example, they did not include siblings. “Nor do they allow for the variety of personal relationships that sometimes constitute the ‘family’ of particular persons in Australian society today”. He continued:

Once the decision is further made to reflect the reality of personal relationships in Australian society today, to the extent of exempting (at least some) de facto spouses, it is clear that even a narrow definition of the orthodox nuclear family has been abandoned as the criterion for exemption.

illustrations rather than the description of a new principle. The result is arbitrary and discriminatory. The alternative formulation is simpler and provides for changing community attitudes to personal relationships.⁴⁴

generalised use of concepts like marriage and spouse as a proxy directly raises problems of congruence: in some cases, the concepts are too narrow; in some, they are too broad; and in some, they are both too narrow and too broad at the same time. Even when statutes are written so as to deal more generally with “conjugal” relationships – that is, when they are drafted to include both marriage and common law relationships – they can still fail to line up with what appears to be the underlying rationale for the policy or programme Parliament is pursuing.⁴⁵

Australia

2.42 There is legislation recognising heterosexual de facto relationships in all States and Territories of Australia.

2.43 The De Facto Relationships Act 1999 (Qld) covers heterosexual and same-sex relationships, but only regarding property. The newly enacted Family Court Amendment Act 2001 (WA) also applies to same sex and heterosexual de facto relationships, referring to them as “marriage-like” relationships.⁴⁶ There is recognition of same-sex and close personal relationships in the Australian Capital Territory and Victoria.⁴⁷ The Domestic Relationships Act 1994 (ACT) opened the way for treating interdependent close personal relationships (at least for property purposes) as analogous to couple relationships.

Internationally

2.44 Statutory schemes which recognise de facto relationships have also been enacted in other jurisdictions around the world including Canada, New Zealand, the USA, the Netherlands and other parts of Europe.

2.45 Recent amendments in New Zealand extend the provisions for property division under the Matrimonial Property Act 1976 (NZ) to de facto couples, both heterosexual and same sex. The amending legislation⁴⁸ renames the Act the Property (Relationships) Act 1976 (NZ), which will apply equally to marriages and de facto relationships of more than three years duration.⁴⁹ Under the new provisions, property will be divided equally and can only be shared unequally where it would be “repugnant to justice” otherwise.⁵⁰ The court also has a discretionary power to order one party to make payments to the other where there is a likely future economic disparity.⁵¹

2.46 Last year the Federal Government of Canada passed legislation to extend the definition of a common law partner to include same-sex couples. The new Modernization of Benefits and Obligations Act SC 2000 c 12 (Can) was partly a response to the case of M v H,⁵² which held that legislation which fails to recognise same-sex and heterosexual relationships equally is a violation of section 15 of the Canadian Charter of Rights and Freedoms.⁵³ The new legislation amends 68 existing statutes to include same-sex couples, thereby providing them with access to the same benefits and obligations that those statutes afford heterosexual common law partners. There has also been reform in Canada at a provincial level, with British Columbia,⁵⁴ Quebec⁵⁵ and Ontario⁵⁶ all having enacted legislation recognising same-sex relationships for certain provisions regarding property and/or maintenance.

2.47 In the USA, Vermont has enacted “civil union” legislation⁵⁷ covering same-sex relationships. The legislation states that:

Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.⁵⁸

2.49 The Netherlands is the first country to grant total equality of recognition to same-sex couples through recently enacted legislation that specifically allows same-sex marriage.⁶² The Netherlands also has an alternative to marriage for heterosexual and same sex-couples called Registered Partnerships.⁶³ Germany has also very recently enacted legislation⁶⁴ which will allow a limited form of same-sex marriage, where spouses can take each other’s name, have next of kin rights in medical decisions and share household insurance.⁶⁵

2.50 Denmark,⁶⁶ Norway⁶⁷ and Sweden,⁶⁸ and also Iceland⁶⁹ have Registered Partnership laws, although only for same-sex couples.⁷⁰ In Belgium⁷¹ and France⁷² there exist schemes similar to registered partnership into which cohabitees, including same sex and heterosexual couples, can voluntarily enter. The Belgian legislation covers non-marriage relationships, such as two siblings who live together, and recognises cohabitees in the area of debt, obliges couples to share the costs of cohabitation and also regulates the use and disposition of joint property during the relationship.⁷³ The Belgian scheme was modelled on the French one, although the latter excludes close relatives. The French scheme has consequences in the areas of debt, social security, leases, income tax, residency and also maintenance, where each party undertakes to provide mutual assistance during the relationship.⁷⁴ Also, property acquired together is regarded as jointly owned unless otherwise agreed in a written statement.⁷⁵

2.51 The above registered partnership and similar schemes are all optional and voluntarily entered, but there is also legislation in Hungary, Sweden and Spain which recognises de facto heterosexual and same-sex relationships as a matter of presumption.

2.52 In 1996, a provision in Hungary was amended to extend certain property rights of unmarried cohabitees to same-sex couples as well.⁷⁶ Upon breakdown of the relationship, property acquired during cohabitation is divided according to contributions made to its acquisition, including homemaker contributions.⁷⁷

2.53 In Sweden, the Cohabitees (Joint Home) Act⁷⁸ which applies to couples living in a marriage-like relationship, is also applicable to same-sex couples due to provisions in the Homosexual Cohabitees Act.⁷⁹ The legislation provides for equal division of jointly acquired property upon breakdown of the relationship,⁸⁰ unless that would cause one party financial hardship.⁸¹ The legislation does not however grant maintenance or inheritance rights.⁸²

2.54 In Catalonia, a province in Spain, a scheme exists for cohabiting spouses which creates rights in the areas of debt and household costs, provides certain social benefits if one spouse is employed by the Catalan government and also regulates the use of the common home.⁸³ However, while the scheme will operate automatically for heterosexual couples if they have been together for two years or have a child, same-sex couples must register their relationships.⁸⁴

ISSUES FOR DISCUSSION

Greater legal recognition of de facto relationships

2.55 As noted earlier, the 1999 amendments to the PRA amended some, but not all, NSW legislation that refers to “spouse” or “partner”, to make it clear that the definition of those terms includes de facto partner as referred to in the PRA. The Gay and Lesbian Rights Lobby identified more than 50 NSW Acts that affected people in same-sex relationships and had proposed that these all be amended.⁸⁵ In December 1999, the Legislative Council’s Standing Committee on Social Issues (“the Social Issues Committee”) recommended that the Government examine all NSW legislation “to determine whether amendments need to be made to ensure a consistent application of the new definition of de facto” in the 1999 legislation and that employment-related laws and awards should be made consistent with the PRA.⁸⁶

2.56 The Commission can see no policy reason why the definition of de facto partner or spouse should not be made consistent across all relevant legislation, but is interested in hearing views which support or disagree with this proposal.

ISSUE 2

Should the definition of de facto partner in the PRA be applied consistently across all relevant legislation in NSW? Why or why not?

2.57 The De Facto Relationships Act 1984 (NSW) was originally intended to provide a just and equitable means of dealing with the breakdown of intimate heterosexual relationships involving couples who were not married, and therefore could not avail themselves of the FLA. While the 1999 amendments extended the scope of the PRA beyond these relationships, the substantive provisions of the PRA remained largely the same. Consequently, it is arguable that the focus of the PRA, particularly regarding the property and asset provisions, is addressing the consequences of the breakdown of de facto relationships.

2.58 The PRA includes people cohabiting in de facto and close personal relationships within the single category of “domestic” relationship. As such, for the purposes of property and asset division and maintenance, the same provisions of the PRA apply to both de facto and close personal relationships. This happens despite the fact that de facto relationships and close personal relationships can be vastly different in nature, and people may form such relationships for very different reasons.

2.59 One difficulty with applying the same provisions to both de facto and close personal relationships is that, sometimes, financial interdependence will be critical in a relationship, whereas at other times, it will be the emotional element that is critical. For example, in terms of medical decision-making, the emotional link is the significant aspect of the relationship. Conversely, with property division, financial interdependence is central. In general, the provisions of the PRA assume some degree of emotional and financial interdependence in a relationship. While this is usually the case in de facto relationships, it may not be so in other close personal relationships.

2.60 On the other hand, having a single, inclusive category of domestic relationship to which the provisions of the PRA apply is advantageous in that people in de facto and close personal relationships have access to equal protection under the PRA. The provisions of the PRA are broad and flexible enough to accommodate different types of relationships, and the legal consequences which attach may differ depending on the circumstances.

2.61 The Commission is interested to hear views on whether, given the differences between de facto and other close personal relationships, they should continue to be recognised and regulated by the same provisions in the PRA.

ISSUE 3

Are the provisions in the PRA concerning de facto relationships appropriate for recognising and regulating close personal relationships? Why or why not?

If not, how should close personal relationships be recognised and regulated?

2.62 The PRA currently requires parties to a domestic relationship to be living together.⁸⁷ While cohabitation may be an accepted indication of whether a domestic relationship, particularly a de facto relationship, exists, many have argued that this requirement is too limiting.⁸⁸ The Gay and Lesbian Rights Lobby proposed that there should be a broader category of domestic relationship in the PRA that was not limited to cohabitants.⁸⁹ This was reflected in the two unsuccessful attempts prior to the PRA to broaden the De Facto Relationships Act 1984 (NSW): namely, the De Facto Relationships Amendment Bill 1998⁹⁰ and the Significant Personal Relationships Bill 1997.⁹¹

2.63 The PRA also currently specifies that only parties to a domestic relationship who have lived together for longer than two years may apply for an order for financial adjustment. This requirement is discussed in Chapter 6.

2.64 The major advantage of removing the cohabitation requirement is that the PRA would cover people who are genuinely in, or consider themselves to be in, domestic relationships based on mutual emotional and/or financial interdependency but, for a variety of reasons, do not live together. This would include de facto couples who live apart during the week, either through choice or work commitments, but spend their weekends together, and couples separated due to one partner being in prison or serving overseas in the armed forces. It would also cover, for example, siblings who own property together but live separately, and who may wish to seek relief under the PRA in the event of a dispute, and non-resident carer relationships.

2.65 More particularly, it has been argued that the cohabitation requirement does not cover many gay and lesbian relationships.⁹² The Gay and Lesbian Rights Lobby pointed out that a significant number of gay and lesbian couples do not live together, yet they consider themselves to be in interdependent personal relationships.⁹³

2.66 The Social Issues Committee noted that while the current definition of de facto relationship covered most relationships adequately, there were still some situations (such as those discussed above) that did not fall within the scope of the definition. As a solution, the Social Issues Committee recommended that the cohabitation requirement should remain for de facto relationships, but should be removed for close personal relationships. This would enable couples who meet the de facto criteria but for the cohabitation requirement to receive legal recognition as a close personal relationship.⁹⁴

2.67 Removing the cohabitation requirement would make the ambit of the PRA extremely broad. This could have the significant disadvantage of making it difficult to determine when a close personal relationship exists. This could result in relationships where there is only a tenuous emotional or financial interdependency, which could cause injustice. In looking to make the PRA more flexible and inclusive, the focus of the legislation as a means of recognising close relationships, primarily for the purpose of effecting just and equitable financial adjustments when those relationships break down, needs to be kept in mind.

2.68 This difficulty could be partly addressed by the recommendation of the Social Issues Committee that the indicia in the PRA used to determine the existence of a de facto relationship be applied to close personal relationships. Those factors include: the duration of the relationship; the degree of financial dependence; the ownership, use or acquisition of property; and the degree of mutual commitment to a shared life.⁹⁵ In addition, the Social Issues Committee favours expanding these criteria to include the matters listed in the De Facto Relationships Amendment Bill 1998 (NSW). These include matters such as the nature of living and financial arrangements, and social aspects of the relationship: whether the parties represent themselves to others as being in an interdependent relationship; whether they plan and undertake joint social activities; and the opinion of friends about the nature of the relationship.⁹⁶

2.69 The problems associated with the PRA applying too broadly should the cohabitation requirement be removed could also be addressed by the introduction of a registration system, although this option has other difficulties associated with it. This is discussed below.

ISSUE 4

Should the PRA be extended to cover people in domestic relationships who do not live together?

Why or why not?

Should the cohabitation requirement apply to both de facto and close personal relationships, or to just one of those categories? Why or why not?

Current presumptive approach
2.70 The current approach in the PRA is presumptive, that is, those who meet the definition of domestic relationship fall automatically within the operation of the PRA without the need to register a relationship. As outlined above, this can be contrasted with some of the approaches in North America and Western Europe.

2.71 The main advantage of a presumptive approach is that it does not require any form of registration: people will not be required to take active steps to opt in. As a result, people do not need to be aware of the PRA to benefit from it, and will be covered by the provisions of the PRA if they do not make their own financial agreements. The presumptive approach also allows people to “opt out” of the operation of the PRA if they wish, by making private agreements.

2.72 The main difficulty with a presumptive approach is in relation to close personal relationships, where it may be difficult to identify the parties to a relationship. This would be a particular problem should the cohabitation requirement be removed. For example, a person in a domestic relationship as defined in the PRA is eligible to make a claim under the Family Provision Act 1982 (NSW). Should the definition of domestic relationship be amended to remove the requirement that the parties live together, it may be difficult to establish whether people were in a close personal relationship sufficient for the purpose of making a family provision claim.⁹⁷ The situation would be clarified if such a relationship were formally registered in some way under the PRA.

Benefits and drawbacks of registration
2.73 Registration has the benefit of certainty. That certainty removes the need for legislative preconditions such as requiring cohabitation. The parties to a relationship can be readily identified, and have demonstrated that they know about, and agree to be bound by, the legislation and its provisions. It would give people who do not wish or are legally unable to marry, such as gay and lesbian couples,⁹⁸ the opportunity to have their relationship registered and formally recognised by the State. It also provides a system of recognition for people who do not wish to live together, but want to acknowledge their relationship of mutual support.

2.74 However, unlike other parts of the world, no Australian report or inquiry on the issue has supported registration as the sole method of relationship recognition. The Gay and Lesbian Rights Lobby have repeatedly expressed concern about registration, arguing that, while purporting to give legitimacy to relationships, it would in fact establish a hierarchy of legally recognised relationships and be seen as a “second best” option.⁹⁹ The Social Issues Committee noted that registration would be unlikely to achieve more than the current presumptive regime under the PRA, and consequently recommended that such a system not be introduced.¹⁰⁰

2.75 It has also been argued that few people would be likely to register relationships.¹⁰¹ Heterosexual couples who choose not to marry would be unlikely to opt for another type of formal recognition, while same-sex couples may not want to register their relationships due to concerns about homophobia, or because of the issues noted above raised by the Gay and Lesbian Rights Lobby.

2.76 A further difficulty with adopting an opt-in approach is ensuring information remains updated. Otherwise, people may still be formally registered years after they separate and repartner. One way of addressing this problem is to require all registrations to be renewed regularly, for example every three years. Another issue is whether both parties should be required to end or update a registration, or whether this should be permitted unilaterally.

Option 1
2.77 The first option is to retain the current presumptive approach in the PRA. The advantages and disadvantages of this approach are discussed at paragraphs 2.71-2.72.

Option 2
2.78 The second option is to retain the presumptive approach in the PRA, but also introduce an optional registration system for those who choose to have their relationships recognised more formally. This option would have all of the advantages and disadvantages of registration set out at paragraph 2.73. It would have the additional advantage, however, of giving people the option to choose to register (which would clarify the status of their relationship as one falling within the scope of the PRA), yet would also provide protection for those who did not choose registration. The specific disadvantage with this approach is the undesirability of establishing a three-tier hierarchy of relationships: namely, marriage, registered domestic relationships, and presumptive domestic relationships.

Option 3
2.79 A further option is to make registration the only option under the PRA. In this way, the PRA would operate similarly to the FLA, that is, the PRA would only apply to people who had formally registered their relationship. The major advantage is certainty concerning the scope of the legislation and the relationships it covers. However, as the Commission stated above,¹⁰² there is a notable amount of opposition to registration as the sole means of relationship recognition under the PRA, suggesting that many people would have valid reasons for choosing not to register. Accordingly, the lack of a presumptive category would result in a significant number of relationships which are currently recognised under the PRA being excluded.

Option 4
2.80 The final option put forward by the Commission is to have a presumptive approach with respect to certain relationships, while giving people the choice of deciding whether or not to register other types of relationships. For example, it could be presumed that people living in a de facto relationship were automatically covered by the PRA, since those relationships are easier to identify, while a registration approach could apply for people in other close personal relationships who may wish to have the provisions of the PRA apply to them. For de facto relationships, this option would entail all of the benefits and detriments of registration discussed earlier.¹⁰³ Difficulties would arise, however, for people who did not meet the criteria for de facto relationships, but fell into the close personal relationships category, and who did not wish, or did not know of the requirement, to register. This would exclude a number of relationships currently covered under the PRA.

ISSUE 5

Which of the Commission’s options do you prefer? Why?

If a registration system is the preferred option, how should it work?

1. See para 2.19 for definitions.

2. See para 1.16-1.18 for statistics.

3. The FLA applies only to couples who are, or have been, married.

4. The laws relating to marriage are the responsibility of the Commonwealth legislature: see para 2.18.

5. See the Property (Relationships) Legislation Amendment Act 1999 (NSW) Schedule 2 for a list of the statutes amended.

6. PRA s 5(1)(b). See also para 2.19.

7. Note, however, that while the PRA applies equally to de facto and close personal relationships, different consequences may result depending on the circumstances. Note also that the majority of the consequential amendments made to other legislation by the 1999 amendments apply only to de facto relationships.

8. For NSW examples, see Freedom of Information Act 1989 (NSW) s 5; Administrative Decisions Tribunal Act 1997 (NSW) s 3; Water Management Act 2000 (NSW) s 3; and Adoption Act 2000 (NSW) s 7.

9. Re Credit Tribunal; Ex Parte General Motors Acceptance Corp, Australia (1977) 14 ALR 257 at 260 (Barwick CJ) cited in D C Pearce and R S Geddes, Statutory Interpretation in Australia (5th ed, 2001, Butterworths, Australia) at 4.40.

10. See also D C Pearce and R S Geddes, Statutory Interpretation in Australia (5th ed, 2001, Butterworths, Australia) at 4.40.

11. See Property Law Act 1974 (Qld) s 255.

12. New Zealand, Select Committee, Matrimonial Property Amendment Bill and Supplementary Order Paper No 25 as reported from the Justice and Electoral Committee (2000). See also Pt 2 of the Property (Relationships) Amendment Act 2001 (NZ), which sets out the principles and purposes guiding the legislation.

13. s 51(xxi) marriage, and s 51(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.

14. Marriage is taken to mean a union between a man and a woman, and so excludes same sex couples: see Marriage Act 1961 (Cth) s 46(1), s 69(2), and FLA s 43(a).

15. See para 2.7.

16. Most notably those concerning inheritance, accident compensation, stamp duty and decision-making in illness and after death.

17. PRA s 5(1), s 5(2).

18. See para 2.62-2.76 for a discussion of registration and the cohabitation requirement.

19. The Social Security Act 1991 (Cth) refers to a “marriage-like” relationship (s 4(2)) and the definition section includes a list of factors that a decision maker is required to consider in order to determine the nature of the relationship: see s 4(3)).

20. J Millbank, “If Australian Law Opened its Eyes to Lesbian and Gay Families, What Would it See?” (1998) 12 Australian Journal of Family Law 99 at 103.

21. See M Stewart, “Domesticating Tax Reform: The Family in Australian Tax and Transfer Law” (1999) 21 Sydney Law Review 453; P Apps, “Tax Reform, Ideology and Gender” (1999) 21 Sydney Law Review 437; C Young, “Taxing Times for Women: Feminism Confronts Tax Policy” (1999) 21 Sydney Law Review 487.

22. Cf B Cass, “Gender in Australia’s Restructuring Labour Market and Welfare State” and L Bryson, “Two Welfare States: One for Women, One for Men” in A Edwards and S Magarey (eds), Women in a Restructuring Australia: Work and Welfare (Allen and Unwin, Sydney, 1995).

23. See for example, T MacDermott, “Who’s Rocking the Cradle?” (1996) 21 Alternative Law Journal 207.

24. See eg Dentists Act 1989 (NSW) s 53(2), s 53(3); Legal Profession Act 1987 (NSW) s 60(3)(b); Retirement Villages Act 1989 (NSW) s 3; Compensation to Relatives Act 1897 (NSW) s 7(4); Motor Accidents Act 1988 (NSW) s 3; Mental Heath Act 1990 (NSW) Sch 1; Duties Act 1997 (NSW) s 67.

25. See Police Service Act 1990 (NSW) s 216; Liquor Act 1982 (NSW) s 4.

26. See eg Coroners Act 1980 (NSW) s 4; Guardianship Act 1987 (NSW) s 3; Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 4; Industrial Relations Act 1996 (NSW) s 55(5).

27. See eg Co-operatives Act 1992 (NSW); Financial Institutions Commission Act 1992 (NSW).

28. See De Facto Relationships Act 1984 (NSW) s 17 (that is, the PRA prior to 1999); Wills Probate and Administration Act 1898 (NSW) s 61B(3A), s 61B(3B); Adoption of Children Act 1965 (NSW) s 19(1A).

29. See D v McA (1986) 11 Fam LR 214 at 227 where the list of factors was set out as:

1. The duration of the relationship;
2. The nature and extent of the common residence;
3. Whether or not a sexual relationship existed;
4. The degree of financial interdependence, and any arrangements for support between or by the parties;
5. The ownership use and acquisition of property;
6. The procreation of children;
7. The care and support of children;
8. The performance of household duties;
9. The degree of mutual commitment and mutual support;
10. Reputation and public aspects of the relationship.
This list has been largely reproduced as a section listing an open set of factors which may be considered by the court in determining whether there is a de facto relationship. The PRA s 4(2) now provides that: “In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements or financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship.”
Section 4(3) clarifies that, “No finding in respect of any of the matters mentioned in subsection (2)(a)(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.”

31. See Criminal Procedure Act 1986 (NSW) s 23A and Victims Compensation Act 1996 (NSW) s 9, both of which define a family victim as “the victim’s de facto spouse, or partner of the same sex, who has cohabited with the victim for at least 2 years”. The Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) s 4 defines de facto relationship as “the relationship between two unrelated adult persons: (a) who have a mutual commitment to a shared life, and (b) whose relationship is genuine and continuing, and (c) who live together, and who are not married to one another”.

32. See eg Police Service Act 1990 (NSW) s 216.

33. Wills, Probate and Administration Act 1898 (NSW) s 61B.

34. See Guardianship Act 1987 (NSW) s 36(1): Consent to the carrying out of medical or dental treatment on a patient to whom this Part applies may be given: (a) in the case of minor or major treatment by the person responsible for the patient, or (b) in any case by the Tribunal. See Section 33A for the definition of a responsible person.

35. Lord Hardwicke’s Act 1753 (UK); Matrimonial Causes Act 1873 (NSW).

36. See Chapter 8 for a discussion of the legal obligation on partners in a relationship to support one another.

37. Social Security Act 1991 (Cth) s 4(3).

38. Except where a will was made “in contemplation of marriage”: see Wills Probate and Administration Act 1898 (NSW) s 15(3), s 15(4): R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (Butterworths, 1996) at 10.2.1-10.2.3.

39. Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Report, December 2001) at 49.

40. Law Commission of Canada, Report at 51-55.

41. See Evidence Act 1995 (NSW) s 18 and s 19 for the compellability of spouses in criminal cases only.

42. ALRC, Evidence: Volume 1 Interim Report (Report 26, 1984) at para 5.37. The majority view formed the basis for the Evidence Act 1995 (NSW).

43. Justice Kirby’s dissent is set out in ALRC, Report 26 at para 5.40-5.43.

44. ALRC, Report 26 at para 5.43.

45. Law Commission of Canada, Recognizing and Supporting Close Personal Relationships Between Adults (Discussion Paper, May 2000) at 29.

46. s 205V.

47. Domestic Relationships Act 1994 (ACT); Statute Law Amendment (Relationships) Act 2001 (Vic).

48. Matrimonial Amendment Bill 2000 (NZ) and Supplementary Order 25.

49. S O’Brien, Dramatic Changes to Family Property Law, «www.fmlaw.co.nz/family matrimonialpropertylaw.htm».

50. S O’Brien, Dramatic Changes to Family Property Law, «www.fmlaw.co.nz/family matrimonialpropertylaw.htm».

51. S O’Brien, Dramatic Changes to Family Property Law, «www.fmlaw.co.nz/family matrimonialpropertylaw.htm».

52. M v H [1999] 2 SCR 3 at para 73.

53. Constitution Act 1982 (Can).

54. Definition of Spouse Amendment Act 1999 SBC c 29 (BC).

55. Act to amend various legislative provisions concerning de facto spouses 1999 RSQ c 14 (Quebec).

56. Act to amend certain statutes because of the Supreme Court of Canada decision in M v H 1999 SO 1999 c 6 (Ontario).

57. 15 VSA 23. This law came into effect on 1 July 2000. For more information, see American Association for Single People, Domestic Partnership Information, accessed via «www.singlepeople.org/dp-info.html».

58. 15 VSA 23 s 1204(a).

59. Thirty-five of them cover both same sex and heterosexual couples, while another five allow only same sex couples to register: see American Association for Single People, Municipalities with Domestic Partnership Registries, accessed via «www.singlepeople. org/dp-info.html».

60. American Association for Single People, Domestic Partnership Information, accessed via «www.singlepeople.org/dp-info.html» on 1 February 2001.

61. American Association for Single People, Domestic Partnership Information, accessed via «www.singlepeople.org/dp-info.html» on 1 February 2001.

62. Wet openstelling huwelijik (Staatsbald 2001, 9) or Act of 21 December 2000 amending Book 1 of the Civil Code, concerning the opening of marriage for persons of the same sex, Staatsbald 2001, 9.

63. Registered Partnership Act (Staatsbald 1997, 324) or Act of July 1997 to amend Book 1 Civil Code and the Code of Civil Procedure in order to introduce provisions regarding registration of partnership, Staatsbald 1997, 324.

64. Lebenspartngerschaftgesetz, (“Lifepartnership Act”) came into force 1 January 2001.

65. EGALE: Equality for Gays and Lesbians Everywhere, Same Sex Marriage Around the Globe, accessed via «www.marriageequality. com/global/international.htm» on 24 January 2001.

66. Act No 372 of 7 June 1989, in force 1 October 1989. This legislation also extends to Greenland.

67. Act No 40 of 30 April 1993, in force 1 August 1994.

68. Act of 23 June 1994, in force 1 January 1995.

69. Act of 12 June 1996, in force 27 June 1996.

70. For more detail, see C Forder, “Models of Domestic Partnership Laws: The Field of Choice”, paper for Feminism and Law Workshop Series (Toronto, 27 October 1999) at 2.2.

71. Statutory Cohabitation Act (Belgium), passed on 29 October 1998, inserted into Book 3 of the Civil Code: See also C Forder, Models of Domestic Partnership Laws: The Field of Choice.

72. Pacte Civil de Solidarite in Book 1, pt XII of the French Civil Code.

73. C Forder, Models of Domestic Partnership Laws: The Field of Choice at 2.1.2.

74. C Forder, Models of Domestic Partnership Laws: The Field of Choice at 2.1.2.

75. EGALE: Equality for Gays and Lesbians Everywhere, Same Sex Marriage Around the Globe, accessed via «www.marriageequality. com/global/international.htm» on 24 January 2001.

76. Hungarian Civil Code, s 578/G(2): C Forder, Models of Domestic Partnership Laws: The Field of Choice at 2.1.1.

77. Hungarian Civil Code, s 578/G(1): C Forder, Models of Domestic Partnership Laws: The Field of Choice at 2.1.1.

78. 1987:232.

79. 1987:813 with amendments up to and including 1997:1133: C Forder, Models of Domestic Partnership Laws: The Field of Choice at 2.1.1.

80. Cohabitees (Joint Home) Act s 5.

81. Cohabitees (Joint Home) Act s 9.

82. C Forder, Models of Domestic Partnership Laws: The Field of Choice at 2.1.1.

83. Act 10/1998, Ley de Uniones Estables de Parejas (“Stable Couples Act”): C Forder, Models of Domestic Partnership Laws: The Field of Choice at 2.1.1.

84. Arts 21, 1.1 and 1.2 Act 10/1998: C Forder, Models of Domestic Partnership Laws: The Field of Choice at 2.1.1.

85. See Gay and Lesbian Rights Lobby, The Bride Wore Pink: Legal Recognition of Our Relationships (Sydney, 2nd ed, 1994).

86. NSW Legislative Council Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Report 20, Parliamentary Paper 127, 1999) (“Social Issues Committee Report”) Recommendations 12 and 10, respectively, at 67. It was also proposed that the government “review and amend all legislation imposing responsibilities and obligations to require similar compliance by those in same sex relationships as those in opposite sex relationships” and that “adequate measures” be put in place “to protect the privacy of those making disclosures regarding their same sex relationship”: see Recommendation 11 at 67.

87. In his Second Reading Speech on the 1999 Amendment Bill, the then Attorney General, the Hon J W Shaw QC MLC, noted that the legislation did not include people who merely shared accommodation as a matter of convenience, such as flatmates: NSW, Parliamentary Debates (Hansard) Legislative Council, 13 May 1999, the Hon J W Shaw QC MLC, Attorney General, Second Reading Speech at 229.

88. See eg, Anti-Discrimination Board of NSW, Submission at 3-4.

89. See Gay and Lesbian Rights Lobby, The Bride Wore Pink (Sydney, 2nd ed, 1994).

90. For a discussion of the De Facto Relationships Amendment Bill 1998 (NSW), and a list of the Acts that it would have amended, see J Millbank, “The De Facto Relationships Amendment Bill 1998 (NSW): The Rationale for Law Reform” (1999) 8 Australasian Gay and Lesbian Law Journal 1.

91. The ACT is the only Australian jurisdiction that provides a statutory framework for property alteration between non-cohabitants: see Domestic Relationships Act 1994 (ACT).

92. See Anti-Discrimination Board of NSW, Submission at 3; Northern Rivers Community Legal Centre, Submission at 1.

93. Gay and Lesbian Rights Lobby, Submision at 2.

94. Social Issues Committee Report at 50, 54-55.

95. See PRA s 4(2).

96. See Social Issues Committee Report at 51-52.

97. Although, the Commission notes in this regard that courts already make such assessments about the nature of relationships, based on individual facts and circumstances, for a variety of purposes.

98. Since marriage is an area of Commonwealth legislative responsibility, and this reference is confined to the PRA, the Commission refrains in this paper from discussing the option of homosexual marriage.

99. Gay and Lesbian Rights Lobby, Submission at 3-4. See also, Gay and Lesbian Rights Lobby, The Bride Wore Pink (Sydney, 2nd ed, 1994) at Ch 8.3.

100. See Social Issues Committee Report, Recommendation 5 at 27.

101. This view is backed up by evidence of low registration rates in jurisdictions that have such a system.

102. See para 2.74.