[2] The De Facto Relationships Act was the result of recommendations made by the NSW Law Reform Commission in its Report 36 in which the Commission reviewed the law relating to family and domestic relationships with particular reference to people living in heterosexual de facto relationships and the rights and welfare of the children living in such relationships. It was the first legislation of its kind to give clear statutory rights to people living in de facto relationships to seek court orders for an adjustment of property interests when their relationships broke down. It was also the first to allow couples to make legally binding cohabitation agreements. To this extent, the legislation was considered to be a milestone at the time of its enactment.

[3] Less than twenty years later, changes within the social context and legal framework caused the Government to consider the need for amendments to the De Facto Relationships Act 1984. In 1993, the Gay and Lesbian Rights Lobby produced a consultation document entitled The Bride Wore Pink, which recommended that the law be amended to recognise same sex couples. Subsequently, two private members bills (the Significant Personal Relationships Bill 1997 and the De Facto Relationships Amendment Bill 1998) were introduced to Parliament. The Significant Personal Relationships Bill 1997 was introduced by Clover Moore MP and offered a wide range of options as to how personal relationships could be recognised. This Bill did not have the full support of the Gay and Lesbian Rights Lobby. However, the De Facto Relationships Amendment Bill 1998 which was introduced by the Hon Elisabeth Kirkby received support from many quarters including the Gay and Lesbian Rights Lobby. This Bill covered two categories of relationships: a “de facto relationship” which was defined as a relationship between two people who lived together as a couple and covered both heterosexual and homosexual relationships; and a “domestic relationship” (which may or may not have been a de facto relationship) where there is interdependence and where parties may or may not live together. In October 1998, the Government referred the issues raised in the De Facto Relationships Amendment Bill to the Legislative Council’s Standing Committee on Social Issues. The Committee inquiry lapsed when Parliament was prorogued in the lead up to the March 1999 election. On re-election, the Government re-constituted the Committee, but decided to enact its own Bill, the Property (Relationships) Legislation Amendment Act 1999 before the Standing Committee reported.

[4] The amendments via the Property (Relationships) Amendment Act 1999 (“the 1999 amendments”) are considered yet another milestone in that they provide a framework for division of property between people in a “domestic relationship” which now includes same sex co-habiting couples, and those in a “close personal relationship”. A “close personal relationship” is one that is not a marriage or de facto relationship, but is between two adults, whether or not related by family, who are living together and where one provides the other with domestic support or personal care. The sorts of relationships covered are those, for example, between a parent and child, or a person and his/her carer (provided the carer is not paid by the person cared for). Further, the 1999 amendments authorise a decision maker to make just and equitable orders, having regard to the financial and non-financial contributions of the parties. The 1999 amendments also consequently amended a number of pieces of legislation to extend heterosexual de facto rights and obligations to people in same sex relationships, in areas such as inheritance, compensation and stamp duty. A smaller number of other Acts were also amended to apply to those in close personal relationships.

[5] Although the PRA now has wider coverage than it did before the 1999 amendments, there are still many other issues that require further investigation. For instance, the broader policy issues surrounding the legal recognition of de facto and close personal relationships outside of marriage has not been examined since the Commission’s report in 1983. At that time, the Commission treated marriage as being on a higher plane than other relationships. Consequently, provisions in the De Facto Relationships Act 1984 gave more limited rights to de facto couples than were available to married couples. That discrepancy in approach between marriage and de facto relationships is still evident today in some aspects of the PRA, and any difficulties in interpretation merely continue and apply to a wider class of potential applicants. For example, section 20 of the Act authorises a decision maker to make just and equitable orders, having regard to the financial and non-financial contributions of the parties. Unlike the Family Law Act 1975, the PRA does not consider the future needs of the parties when making a determination. The implication of this disparity is that marital relationships give rise to an obligation toward the other party’s future welfare, but other relationships do not.

[6] At first glance, the terms of reference given to the NSW Law Reform Commission indicate that the main focus of the Commission’s inquiry is on property and financial issues. However, the terms of reference also require the Commission to inquire into the process of decision making, the 1999 amendments, and other issues raised by the Legislative Council Standing Committee as part of its review. The Legislative Council Standing Committee raised the following issues for further consideration by the Commission:

• issues surrounding the introduction of a relationship recognition system for those in non-traditional relationships;
• definitional issues raised by the 1999 amendments, ie whether the current definitions of terms such as “de facto relationship” and “close personal relationship” are wide enough and if criteria such as cohabitation, duration of the relationship, whether or not there should be a sexual element, ought to be re considered;
• jurisdictional issues in relation to which court/s ought to have jurisdiction in such matters and possible alternatives to litigation such as mediation and the practicalities involved;
• the issue of the legal recognition of non-biological parents to ensure that children in non-traditional domestic relationships are not disadvantaged;
• the adequacy of the maintenance provision in relation to children.

[8] The Discussion Paper is the result of detailed research into the areas identified as requiring further consideration. In the course of the review, the Commission published a short preliminary paper in February 2000 seeking views on the issues raised. Several submissions were received in response. The Commission has also held a seminar and workshop as part of this review. The purpose of this Discussion Paper is to seek further input on the options presented in the Paper.

[9] The structure of the Discussion Paper is such that although the main focus is on property and financial matters, broader considerations concerning relationships generally are dealt with in separate chapters. Chapter 1 provides an overview and background to the review. In Chapter 2, the Commission looks broadly at the types of personal relationships in which people may be involved, and examines when, how and why the law attaches legal consequences to those relationships. Where children are involved, the interests and welfare of those children and the relationship they have with their parents is always an important factor to consider. While the law recognises the relationship between children and their biological or adopted parents in a marriage or de facto relationship, only limited recognition extends to non-biological children of parents in de facto relationships. Chapter 3 examines the legal recognition of non-biological parent/child relationships with a view to ensuring that children of parents in non-traditional (particularly same sex) relationships receive equal recognition and protection under the law.

[10] Chapters 4 to 8 deal with financial and property issues under the PRA. Under the current law, couples in de facto or other close personal relationships may reach an enforceable agreement concerning the distribution of their assets on the breakdown of their relationship. In Chapter 4, the Commission examines the provisions dealing with such financial agreements to see whether an appropriate balance has been achieved between, on the one hand, enabling people to make their own legally binding agreements and, on the other, providing adequate safeguards to protect people from making, and being held to, unfair bargains. Where a couple cannot reach an agreement, the court may make orders under section 20 of the PRA concerning the distribution of assets.

[11] In Chapters 5 and 6, the Commission looks at the operation of section 20 to see whether it is adequate to bring about just and equitable property division orders, especially in light of the broader range of relationships to which the PRA now applies, and discusses broader issues concerning property. Chapters 7 and 8 examine the powers of the court to make orders concerning superannuation and maintenance for partners in a relationship, respectively.

[12] The methods and appropriate forums for dispute resolution under the PRA are discussed in Chapter 9. The Commission identifies deficiencies in the current framework that impede the delivery of a fair, accessible, timely and affordable resolution of disputes, and canvasses options for reform.

[13] The Commission has formulated a number of proposals based on tentative views about aspects of the law that the Commission considers are in need of reform or clarification. The Commission has been 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 proposals do not, however, represent our final conclusions. They are intended to attract comment from interested groups and members of the public. The Commission welcomes submissions on the proposals and will be consulting with relevant interest groups and members of the public shortly. All views and comments will be considered by the Commission before finalising recommendations for reform in the Report.