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Where am I now? Lawlink > Law Reform Commission > Publications > Section 1 - Background
Issues Paper 1 (1981) - De Facto Relationships
Section 1 - Background
I. INTRODUCTION
A. Terms of Reference
1.1 On 13 July 1981 the Attorney General of New South Wales, the Hon. F.J. Walker, LL.M., M.P., made the following reference to the Commission:
“To inquire into and review the law relating to family and domestic relationships, with particular reference to the rights and obligations of a person living with another person as the husband or wife de facto of that other person, and including the rights and welfare of children of persons in such relationships.”
The Attorney General directed that in carrying out this reference, the Commission should take into account the work already completed by the New South Wales Anti-Discrimination Board on superannuation.1 He noted, further, that the Commission would also take into account the proposed reference of family law powers.2
B. Liaison with the Family Law Council
1.2 The Family Law Council has been established by the Commonwealth Attorney-General under the Family Law Act 1975 (Cth), s.115. The function of the Council is to advise the Commonwealth Attorney-General on specified topics, including the working of any legislation relating to family law and “any other matters relating to family law” (s.115(3)). The Council has expressed interest in the law concerning de facto relationships. In its Fourth Annual Report (1980), the Council described this matter as “a major item of interest” and indicated that it intended to explore the question further, although acknowledging that “[d]e facto relationships are essentially a matter of State law”.3
1.3 Upon receipt of our reference contact was made with the Family Law Council with a view to determining whether the inquiry could be conducted in co-operation with the Council. The Council agreed that liaison between us was desirable and appointed a sub-committee for this purpose. The sub-committee consists of Mr. P. Twigg, solicitor, Sydney; Ms. C. Petre, social worker, Sydney; and Professor D. Hambly, Faculty of Law, Australian National University. Ms. P. Harper, National Council for the Single Mother and Her Child, is a corresponding member of the sub-committee. The Family Law Council has quite properly stressed that it is not to be taken as being bound by the approach or recommendations of this Commission; its position is not one of commitment, but of interest and liaison. We accept this position and look forward to working closely with the Council’s sub-committee during the course of our reference.
C. Why Institute an Inquiry?
1.4 The formal answer to this question is simple. The Attorney General has referred the law relating to de facto relationships to us and we are obliged by statute to consider the reference.4 More practical responses to the question can, however, be given.
1.5 First there are clear indications that the number of cases in which de facto spouses or their families encounter legal problems is increasing. In part this is because the number of people living in de facto relationships is increasing. The material presented in Section 2 supports this view. It is also possible that de facto spouses are more willing and able to bring disputes on such matters as property and custody before the courts. This in turn could be the result of the more generous provision of legal aid or, perhaps, changing attitudes to the resolution of family disputes. Whatever the explanation, judges are now commenting on the regularity with which they are required to deal with the legal problems of de facto spouses.5 We do not yet have the benefit of submissions from practising lawyers, nor have we yet had the opportunity to make our own inquiries, but we have no reason to doubt the accuracy of the observations made by the judges and other commentators.6
1.6 Second, there appears to be increasing dissatisfaction with the current approach of the law to de facto relationships. Sometimes this dissatisfaction is expressed by judges, who consider that they have no choice but to reach a result which is unjust.7 The dissatisfaction is also reflected in greater activity by law reform agencies and legislatures. In South Australia, for example, the Family Relationships Act 1975 has brought about important reforms, although the legislation has not escaped criticism.8 The Tasmanian Law Reform Commission has proposed significant changes to the law,9 while in New South Wales bodies such as the Anti-Discrimination Board and the Task Force on Domestic Violence have pointed to what they consider to be defects in the existing law.10 Despite this activity, there has been no systematic and detailed examination in this State of the policy issues raised by legal regulation of de facto relationships.
1.7 We acknowledge that indicators such as the reported or unreported judgments of courts do not necessarily constitute a sure guide to the extent to which the legal system is operating unfairly or is in need of reform. Cases decided by the courts may not be representative of the situation generally, although it is equally plausible that for every case of injustice commented on by a judge there are others which do not reach the courts because legal practitioners, quite correctly, advise their clients that proceedings would be doomed to failure. Indeed, we hope that publication of this issues paper will stimulate persons who, either through their own experience or through advising others, can provide evidence as to the adequacy or inadequacy of the existing law. At this stage, however, we are satisfied at least that there are issues worthy of serious examination. What recommendations, if any, should be made is, of course, another question.
D. Our Approach
1.8 This paper has two major objectives. First, it attempts to describe the law governing de facto spouses and their children, and to provide information on the social context in which the law operates. Second, it identifies policy questions which, in our view, should be considered in the course of the reference. These questions are for the guidance of persons and organisations wishing to make submissions to us or simply to comment on the reference. We do not intend to restrict the range of submissions that may be made and commentators may wish to raise further issues for discussion or deal with matters not covered in the paper. They may also prefer to follow an approach different from that taken in this paper. Nonetheless we think it important to specify the questions that appear to us to be significant.
1.9 The form of the paper is as follows:
- In part II of Section 1 we outline briefly the history and structure of family law in Australia. We then examine the proposal for a reference of State family law powers to the Commonwealth. This is a matter of general significance and one that the Attorney General has indicated we should take into account.
- Section 2 analyses information available from the Census in Australia and other sources as to the incidence of de facto relationships. This section does not reflect any empirical work undertaken by us, but relies on published material. Section 2 also distinguishes different categories of de facto relationships and suggests reasons for the apparent increase in the number of de facto relationships.
- Section 3 traces the extent to which de facto relationships have been recognised and regulated by legislation in Australia. This section refers both to Commonwealth law and the law of the Australian States and Territories. We explain the operation of the status of children legislation, which is especially important for de facto families. Particular emphasis is placed on New South Wales law since this is, of course, the focus of our reference.
- Section 4 compares the law governing marital relationships and that governing de facto relationships. The purpose of the comparison is not to suggest that reforms are necessarily required whenever the approach of the law to married persons and to de facto partners differs. The comparison does, however, assist in identifying the policy issues requiring consideration.
- Section 5 states arguments for and against further legislative regulation of the rights and duties of de facto spouses (and their children). It also identifies four models of reforming legislation, to be considered should reform be thought appropriate. Finally Section 5 sets out questions, both general and specific, which we regard as important. As already noted, the list is intended to provide guidance to commen-tators, but is not necessarily exhaustive.
II. THE HISTORY AND STRUCTURE OF FAMILY LAW IN AUSTRALIA
1.10 In order to explain the existing law concerning de facto relationships, it is necessary to refer briefly to the history and structure of family law in Australia. This is an area in which the division of legislative powers between the Commonwealth and the States under the Australian Constitution is of considerable significance. Indeed, perhaps the major challenge facing policy makers in this field is to develop a coherent system of family law in the face of constitutional obstacles.
1.11 The framers of the Australian Constitution showed considerable foresight in granting the Commonwealth powers to legislate in relation to “marriage” and “divorce and matrimonial causes”.11 In granting the Commonwealth these powers the framers boldly departed from the American model, under which laws relating to marriage and divorce remained the responsibility of the States. The Australian Constitution afforded the Commonwealth Parliament the means of enacting uniform laws on these topics, thereby avoiding the great variations in State laws that had occurred in the United States. While the framers were prepared to act boldly in relation to marriage and divorce, it is hardly surprising in the social climate of the 1890’s that no thought was given to conferring power on the national Parliament to regulate such matters as informal relationships in the nature of marriage or the rights of ex-nuptial children. These matters therefore remained the legislative responsibility of the States.12
1.12 Despite the express terms of the Constitution, the Commonwealth Parliament did not exercise its powers over marriage and divorce, except for very limited purposes, until 1959. Until the Matrimonial Causes Act 1959 (Cth.) came into force, these topics were governed by State legislation which varied in important respects. The 1959 Act introduced the first national code of divorce and, therefore, under the terms of the Constitution,13 displaced State divorce laws. The regulation of family law by the Commonwealth was carried further by the enactment of the Marriage Act 1961 (Cth.), which established a uniform law of marriage throughout Australia.
1.13 The Matrimonial Causes Act and the Marriage Act were extremely important steps in the development of family law in Australia, since they demonstrated that questions of marriage and divorce were for the national Parliament. The Family Law Act 1975 (Cth.), which came into force on 5 January 1976, was equally significant because it introduced new concepts and procedures into family law. The main features of the Family Law Act are:14
- The Act abandons the concept of the “matrimonial offence” and introduces a single no-fault ground of divorce. Divorce is available only on the ground of irretrievable breakdown of marriage, established by proof of separation for at least 12 months preceding the filing of the application.
- The Act proceeds on a broad view of the Commonwealth’s constitutional powers. In general, the Matrimonial Causes Act permitted proceedings for “ancillary relief”, such as orders for maintenance, custody and the settlement of property, only in the context of divorce proceedings. The Family Law Act governs maintenance and custody proceedings between married persons whether these are instituted before or after an application for divorce. State law therefore no longer governs such matters as maintenance and custody proceedings before divorce. Certain amendments to the Family Law Act introduced into the Senate by the Commonwealth Attorney-General in October 1981, are based on the view that the Commonwealth should expand the Act “to the full extent of its constitutional power with respect to children and property of parties to a marriage”.15
- The Act creates the Family Court of Australia.16 This is a specialised federal court which has jurisdiction to hear and determine “matrimonial causes” arising under the Act. The judges of the court are to be suitable “by reason of training, experience and personality ... to deal with matters of family law” (s.22(2)(b)). Counsellors and welfare officers are attached to the court and have a wide range of functions. State Supreme Courts no longer have jurisdiction to hear cases arising under the Family Law Act, although lower courts may continue to hear certain matters.
- The Act specifies detailed criteria to be applied to claims for maintenance and the transfer of property by a party to a marriage. These criteria ignore questions of matrimonial fault and direct attention to such matters as the financial resources and needs of the parties, their custodial and other family responsibilities and their contributions to the acquisition, conservation or improvement of property in dispute.
1.14 The constitutional validity of the general scheme of the Family Law Act was upheld by the High Court in Russell v. Russell17 (the Family Law Act Case) in 1976, although some sections of the Act were held unconstitutional or limited in scope and doubt was cast on some others. Despite the wide scope of the Family Law Act, there are considerable areas of family law beyond the reach of the Commonwealth Parliament. For example, as noted earlier, the Commonwealth has no general power to regulate the property rights of de facto spouses, nor can it legislate for the custody, maintenance or guardianship of an ex-nuptial child whose parents have never married. The result is that in Australia the system of family law is fragmented, with some areas being subject to regulation by Commonwealth legislation and others by State laws. As later material shows, this fragmentation creates many difficulties, which are often especially acute for de facto families.
III. REFERENCE OF STATE FAMILY LAW POWERS TO THE COMMONWEALTH
1.15 Suggestions have been made to overcome the problems created by the constitutional division of legislative responsibility for family law. One important proposal is that the States should refer to the Commonwealth certain powers to legislate with respect to additional aspects of family law. Such a reference of powers, it is argued, would enable the Commonwealth to avoid the worst consequences of the current constitutional position and adopt a coherent and systematic approach to the resolution of family disputes. As our terms of reference require us to take into account the proposed reference of family law powers, it is appropriate to trace briefly the history of the current proposal.
A. The Constitutional Conventions
1.16 During the period 1973 to 1976 a series of meetings of the Australian Constitutional Convention was held to consider constitutional issues. At the first session of the Convention, held in Sydney in September 1973, item 9 of the agenda raised for consideration
“matters that might be referred to the Parliament of the Commonwealth, with particular reference to
Item 9 was referred by resolution to a standing committee for consideration and report.18 At the second meeting of the Constitutional Convention, in Melbourne in September 1975, the delegates (State and Commonwealth parliamentarians and representatives of local government) resolved:
“That this convention recommends that the following matters should be the subject of references of power by the States to the Commonwealth:-
(a) Illegitimacy - including family inheritance as it affects children who are legitimised by Commonwealth legislation (so as to achieve uniformity in law as between legitimate and illegitimate children).
(b) Adoption.
(c) Maintenance (other than in divorce proceedings).”19
1.17 Before the 1976 Constitutional Convention the High Court of Australia had decided the Family Law Act Case. The effect of that decision, as noted earlier, was to uphold the general validity of the Family Law Act. tut the decision restricted the scope of the Act as it applied to property disputes arising before divorce and to proceedings with respect to children other than children of both the husband and wife. In June 1976 the Commonwealth Parliament amended the Family Law Act to make its terms consistent with the rulings of the High Court.20 Therefore, by the time the meeting of the Constitutional Convention was held in Hobart in October 1976 some of the difficulties created by the Family Law Act Case had become apparent.
1.18 At the Hobart Convention, motions carried in 1975 were resubmitted. During the debate on the proposed reference of family law powers the New South Wales Attorney General, the Hon. F.J. Walker, emphasised the need for a single system of family law throughout Australia. The Attorney General argued
“that the interests of neither family nor society can be served by a fragmented system of courts and legal principles ...
Yet the constitutional division of powers in Australia has given rise to a situation in which Australians are faced with divided and conflicting jurisdiction in an appalling incoherence of applicable legal principle.”21
The Attorney General moved an amendment to the 1975 resolution to the effect that the reference of power should cover:
“(a)Filial and parental status, and rights and duties in relation thereto, including the custody and guardianship of children;
(b) adoption of children;
(c) rights in and distribution of property between parties to a marriage or to a domestic relationship in the nature of marriage as between either of the parties and the children of either or both of them.”22 (Emphasis added.)
The amendment would have overcome the major problems created by the Family Law Act Case, but would have gone considerably further. The italicised words, in particular, would have given the Commonwealth power to legislate with respect to (among other things) the property rights of the parties to a de facto relationship. The debates on the proposed amendment contain no specific justification for extending the reference of power to such matters, beyond the desirability of establishing a single system of family law. In the result the amendment was lost, the Convention reaffirming the 1975 resolution.
B. Standing Committee of Attorneys-General
1.19 The question of a reference of power was pursued by the Standing Committee of State and Commonwealth Attorneys-General. In March 1977 the Standing Committee established a committee to report on three possible solutions to the problems of fragmented jurisdiction in family law matters. These were:
“Referral of the constitutional power by the States to the Commonwealth to deal with family law matters which at present can now be dealt with only by State courts;
implementing a motion carried at the Constitutional Convention to refer to the Commonwealth power to deal with illegitimacy, adoption and maintenance other than in divorce proceedings;
establishing State Family Courts to deal with all family law matters including those matters now dealt with by the Family Court of Australia.”23
After considering the committee’s report, the Standing Committee in July 1977 directed Commonwealth and State officers (among other things) to draft a model Bill to refer family law powers to the Commonwealth. The Bill was to cover disputes
- “between husbands and wives over the children of only one of them,
- over children of a marriage between other persons beside the parents,
- over custody and maintenance of ex-nuptial children, and,
- over matrimonial property where there are no divorce proceedings between the parties.”24
This list attempted to overcome the specific difficulties created by the Family Law Act Case, but did not cover all family law matters arising under State law - for example, property disputes between de facto spouses were not to be subject to the reference of powers. Moreover, the list was less extensive than the resolution approved at the 1975 Constitutional Convention, in that adoption was excluded.
1.20 In April 1978 it was announced that the Standing Committee had under consideration a draft reference of powers
“to enable the Commonwealth to amend the Family Law Act to cover:
- the custody, guardianship and maintenance of ex-nuptial children and legitimate children of previous marriages; and
- property disputes between husband and wife arising before the filing of an application for divorce.”25
The Commonwealth Attorney-General said that the purpose of the reference of power was to “overcome the current situation where families, because of the division of power under the Constitution between the Commonwealth and the States, can be forced to litigate in several courts matters arising out of the breakdown of the husband and wife relationship.”
At about the same time the Attorney-General stated that he would be prepared to recommend to the Government that it act on a reference of power from some States only.26
C. The Current Position
1.21 By July 1980 the participating States and the Commonwealth had still not reached agreement on the terms of a reference of power. Expressing his regret at the delay, the Commonwealth Attorney-General said the reference of powers was still the preferred method of resolving the constitutional difficulties relating to family law.27 The Family Law Council, in successive reports, has expressed its support for the reference of powers,28 noting that serious problems continue to occur caused by the absence of a single court with jurisdiction to deal with all family disputes.
1.22 In December 1980 the Commonwealth Attorney-General announced that work had begun on significant amendments to the Family Law Act.29 The Family Law Amendment Bill was introduced on 20 October 1981. Some of the amendments are designed to overcome specific problems created by the Family Law Act Case. These include provisions expanding the jurisdiction of the Family Court to allow it to deal with a claim for the custody and maintenance of a child of one of the parties to the marriage (such as an ex-nuptial child), when the child is a member of the household of the husband and wife. The amendments also allow the Family Court to deal with property disputes between married persons independently of divorce proceedings. In December 1980 the Attorney-General acknowledged that these amendments partly covered the areas of law included in the proposed reference of powers. He referred to his previous statement that, if the proposed reference of powers were not finalised, the Commonwealth Parliament would be asked to widen the Family Law Act to the limit of its existing constitutional powers. As the States proposing to refer powers had still not reached agreement, the Commonwealth had decided to proceed with its legislation. Nonetheless, the Attorney-General emphasised that the reference was essential if the Family Court was to have jurisdiction, for example, over maintenance and custody claims in relation to children whose parents had never married. He expressed the hope that the reference of powers would proceed.
1.23 The position as at November 1981 is understood to be that four States (New South Wales, Victoria, South Australia and Tasmania) are continuing negotiations with the Commonwealth on the form of a reference of powers. While the terms of the draft agreement have not been made public, it is understood that any reference of power would be subject to certain restrictions. The Commonwealth would receive power to legislate with respect to the maintenance, custody and guardianship of children, but this power could not be exercised so as to affect State laws dealing with adoption, child welfare or the position of children in the care of a State Minister.
1.24 If the reference of powers proceeds, some issues affecting de facto families, currently governed by State law, will come within Commonwealth legislative power. For example, disputes between de facto spouses concerning custody of their children are now determined according to State law.30 Following a reference of powers, the Commonwealth would be able to legislate with respect to such disputes, although the legislation presumably would extend to questions of custody and guardianship of all ex-nuptial children and not merely those who are born to de facto spouses. The analysis in this paper must therefore be read with the possibility of a reference of powers in mind.
FOOTNOTES
1. See para.3.42 below.
2. See paras. 1.15-1.24 below.
3. Family Law Council, Fourth Annual Report 1979-1980 (1980), para.232. The Council pointed out that, if the reference of power concerning ex-nuptial children proceeds, there will be pressure on the law and the courts to have regard to the rights and obligations of parents of such children living in de facto relationships.
4. Law Reform Commission Act 1967 (N.S.W.), s.10(l).
5. See, for example, Jardany v. Brown, 1 July 1981, Powell J. and the 12 reported Australian cases cited (Transcript of Judgment, p.2). The cases cited include Ogilvie v. Ryan [1976] 2 N.S.W.L.R- 504: Allen v. Snyder [1977] 2 N.S.W.L.R- 685; Napier v. Public Trustee (W.A.) (1980) 32 A.L.R. 153 (H. Ct.); Hohol v. Hohol [1981] V.R. 221.
6. For academic commentaries see R-J. Bailey, “Legal Recognition of De Facto Relationships” (1978) 52 A.L.J. 174; H.A. Finlay, “Defining the Informal Marriage” (1980) 3 U.N.S.W. L.J. 279; J. Wade, De Facto Marriages (1981).
7. See, for example, Muschinski v. Dodds, 1 July 1981, Waddell J. (S. Ct. N.S.W.); Murray v. Heggs, (1980)6 Fam. L.R- 781; Blanchfield v. Public Trustee, 10 April 1981, Wootten J. (S. Ct. N.S.W.). See also paras.4.8-4.10 below.
8. See para.3.52 below.
9. See para.3.60 below.
10. See paras.3.30-3.31, 3.34-3.38 below.
11. Under s.51 of the Constitution the Commonwealth Parliament was given power to make laws with respect to
“(xxi) Marriage;
(xxii) Divorce and matrimonial causes; and in relation thereto parental rights and the custody and guardianship of children.”
For analyses of the constitutional background to family law in Australia, see Joint Select Committee on the Family Law Act, Family Law in Australia (1980), vol.1, Ch.2.
12. Except, of course, to the extent that the Commonwealth could affect them pursuant to other powers, such as those concerning taxation or the provisions of pensions and benefits.
13. Constitution, s. 109.
14. Joint Select Committee on the Family Law Act, n.11 above, 2-4.
15. Family Law Amendment Bill 198 1; Second Reading Speech by the Attorney-General, 20 October 1981. See para. 1.22 below.
16. The Family Court functions throughout Australia, except in Western Australia. That State has created its own Family Court under the Family Law Act 1975 (Cth.), s.41.
17. (1976) 134 C.L.R 495. In R. v. Lambert, ex parte Plummer (1980) 6 Fam. L.R. 355, the High Court held that the decision in the Family Law Act Case should not be reconsidered.
18. Proceedings of the Australian Constitutional Convention, Sydney, 3-7 September 1973, xli., for discussion, see ibid., 268-292.
19. Proceedings of the Australian Constitutional Convention, Melbourne, 24-26 September 19 75, xxvii; 101-104. The motion was put by the Hon. K. E. Enderby, Q. C., M.P., a delegate of the Commonwealth, and seconded by the Hon. W.A. Neilson, M.H.A., Tasmania. Paragraph (c) of the motion, in the light of the decision in the Family Law Act Case appears to have been unnecessary. That case decided that the Commonwealth could legislate for maintenance claims between married persons even before divorce proceedings had been commenced.
20. See Family Law Amendment Act 1976 (Cth.). The amendments restrictively defined a “child of the marriage”, for the purposes of proceedings relating to custody, guardianship, access or maintenance, to mean a natural or adopted child of both parties to the marriage. See now Family Law Act 1975 (Cth.), s.5(1). Compare s.5(2). The jurisdiction of the Family Court to make orders for settlement of property was confined to proceedings between the parties to a marriage which were ancillary to proceedings for principal relief (that is, in the usual case, ancillary to an application for divorce). See para.(c) of the definition of “matrimonial cause” in s.4(1). The Commonwealth Attorney-General has introduced a Bill amending both these provisions. See Family Law Amendment Bill 1981, cll.3 and 4.
21. Proceedings of the Australian Constitutional Convention, Hobart, 27-29 October 1976, 51.
22. Ibid., 50.
23. Press release by the Commonwealth Attorney-General, 25 March 1977.
24. Press release by the Commonwealth Attorney-General, 30 June - 1 July 1977.
25. Press release by the Commonwealth Attorney-General, 8 April 1978.
26. Commonwealth Parliamentary Debates, Senate, 10 April 1978, 1031.
27. Press release by the Commonwealth Attorney-General, 24 July 1980.
28. Family Law Council, First Annual Report (1977) 9; Second Annual Report (1978) 6-7; Third Annual Report (1979) pp.7-8; Fourth Annual Report (1980) 9.
29. Press release by the Commonwealth Attorney-General, 11 December 1980.
30. See paras.4.30-4.32 below.
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