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Where am I now? Lawlink > Law Reform Commission > Publications > Section 3 - Official Recognition and Regulation of De Facto Relationships and Ex-nuptial Children

Issues Paper 1 (1981) - De Facto Relationships

Section 3 - Official Recognition and Regulation of De Facto Relationships and Ex-nuptial Children

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3.1 In this section we examine the extent to which legislation in Australia expressly recognises and regulates de facto relationships. Our terms of reference allow us to make recommendations with respect to New South Wales law only. Nonetheless we refer to Commonwealth laws, since the approach taken by legislation such as the Social Services Act 1947 and the Family Law Act 1975 may be very important in assessing the policy issues identified later in the paper. We then examine the recognition of de facto relationships accorded by State law. New South Wales law is covered in some depth, but we also deal with the law of other Australian jurisdictions for comparative purposes. We have included the law relating to the status of ex-nuptial children, which is of particular significance to children living within the household of de facto spouses.

I. COMMONWEALTH LEGISLATION

A. Social Services Act 1947 (Cth)

1. Income Maintenance Schemes - Eligibility

3.2 In Australia income maintenance programs are very largely the responsibility of the Commonwealth. The Constitution, as originally drafted, empowered the Commonwealth specifically to make laws with respect to old-age and invalid pensions.1 In 1908 the Commonwealth exercised its constitutional powers and took over the field from the States by introducing its own program of non contributory, means tested old age and invalid pensions. During the Second World War the federal income maintenance program was expanded dramatically, to include child endowment, widows’ pensions and sickness and unemployment benefits. Doubts about the constitutionality of the war-time innovations prompted the post-war Labor Government to propose an amendment to the Constitution. This amendment, which was approved by a referendum in 1946, increased the powers of the Commonwealth to provide pensions, benefits and allowances to individuals and families.2 In 1947 the Commonwealth consolidated its legislation in the Social Services Act and it is this Act, as amended, which forms the legal framework for the federal income maintenance program administered by the Department of Social Security.

3.3 The Commonwealth widows’ pension scheme, from the outset, provided for certain classes of de facto wives whose husbands had died. The Widows’ Pensions Act 1942 provided that the class of eligible beneficiaries should include “de facto widows”. A “de facto widow” was defined to mean

    “a woman who, for not less than the three years immediately prior to the death of a man, was wholly or mainly maintained by him and, although not legally married to him, lived with him as his wife on a permanent and bona fide domestic. basis.”

The Social Services Act 1947 discarded the term “de facto widow”, preferring the more obscure “dependent female”. However, the definition of dependent female was almost identical to that of “de facto widow” and the definition remains in the legislation.3 The legislation therefore permits a woman who has lived in a de facto relationship with a man for at least three years immediately prior to his death to claim the widows’ pension, provided she meets the other eligibility criteria. On 30 June 1981, 1,169 “dependent females” were receiving the widows’ pension in Australia.4

3.4 The extension of the widows’ pension to “dependent females” is not the only recognition accorded by the Social Services Act to de facto relationships, although it is the longest standing. In 1943 an allowance was introduced for the non-pensioner wife of an invalid or permanently incapacitated or blind old-age pensioner. In 1947 this allowance was extended to de facto wives, provided they had lived with the pensioner “on a permanent and bona fide domestic basis” for at least three years. In 1975 the three year qualifying period was removed.5 Thus the de facto wife of an invalid pensioner is now entitled to a “wife’s allowance”, subject to satisfying other eligibility criteria, regardless of the duration of the relationship. Similarly, the resources of the de facto spouse are taken into account in applying the income test.6

3.5 A de facto spouse separated from his or her partner, or whose partner has died, may be eligible for the supporting parents’ benefit. However, entitlement to the benefit does not depend on the claimant having been a party to a marriage or to a de facto relationship. The major requirement is that the claimant have the custody, care and control of at least one child. The beneficiary, if married, must be living apart from his or her spouse; if a party to a de facto relationship, the beneficiary must have ceased to live with his or her partner on a bona fide domestic basis.7 On 30 June 1981, of the 101,583 females receiving the supporting parents’ benefit, 12,913 (12.7%) were described by the Department of Social Security as “de facto wives”. On the same date 1,001 of the 5,048 male supporting parents’ beneficiaries (19.8%) Were described as “de facto husbands”.8

2. The Cohabitation Rule

3.6 Entitlement to social security benefits in Australia is governed by the general principle that an unmarried couple, living together as man and wife on a bona fide domestic basis ought not to be treated more favourably than a married couple in a similar financial position.9 Thus, if one or both of the parties to a de facto relationship apply for an age or invalid pension the income test is applied to them as if they were a married couple. The income of both arties will be taken into account in determining eligibility for, and the rate of, the pension.10

3.7 The most controversial manifestation of the general principle is the so-called cohabitation rule, applied to widows’ pensioners and supporting parents’ beneficiaries. The effect of the cohabitation rule is that a pension or benefit is refused to a claimant, or withdrawn from a pensioner, who is cohabiting with another person as his or her spouse. The Act achieves this result, in the case of a widows’ pension, by stating that a widow “does not include a woman who is living with a man as his wife on a bona fide domestic basis although not legally married to him”.11 The definition of “ supporting mother” covers only a woman who “is not living with a man as his wife on a bona fide domestic basis although not legally married to him”.12 The definition of “supporting father” has a corresponding exclusion.

3.8 The interpretation of these provisions has recently been considered by the Administrative Appeals Tribunal, which now has jurisdiction to hear certain appeals by claimants and beneficiaries against unfavourable departmental decisions. The Tribunal’s approach illustrates the problems of attempting to encapsulate the concept of cohabitation or a de facto relationship in a statutory formula. In one case involving a claim to a widows’ pension the Tribunal noted that the extent to which the man supported the claimant was likely to be of very great significance, although not determinative.13 A later case stressed that it was necessary to consider
    “all facets of the interpersonal relationship of the woman and the man with whom she is allegedly living ... This will involve consideration of the inter-relationship of the parties and any children in the household; whether that relationship contains any of the indicia of a family unit; and the way in which the parties present their relationship to the outside world.”14

The Tribunal agreed that the question of financial support was important, but was only one of a number of relevant matters. The judgment observed that, before a woman could be said to be living with a man “as his wife” there had to be elements of “permanence and of exclusiveness in the relationship”. Within those confines it had to be recognised that present-day marriage
    “allows considerable scope to the parties to develop their relationship as they see fit without damaging the fundamental integrity of that relationship as a marriage”.

A recent decision again stressed the “infinite variety of circumstances in which husbands and wives live together”.15 This, in the Tribunal’s view, made it “impracticable to lay down specific criteria which [could] be applied to identify the specified relationship”. In particular, the Tribunal rejected a suggestion that the factor to which most significance should be attached was the economic support received by the claimant. This was a significant matter, but not of primary importance. The Administrative Appeals Tribunal is likely to refine these guidelines as it deals with more cohabitation cases.

B. Income Tax Assessment Act 1936 (Cth)

3.9 Under the Income Tax Assessment Act 1936 a taxpayer who contributes to the maintenance of certain dependents is entitled to a concessional rebate, the amount of which varies according to the separate income of the dependent. “Dependant” is defined to mean parent, invalid relative and “spouse”, but the latter term does not include a de facto spouse (s.159J). However, a taxpayer may claim a “housekeeper rebate” for a person who is wholly engaged in keeping house for the taxpayer and is caring for the taxpayer’s child (s.159L). The de facto spouse of the taxpayer may qualify as a housekeeper for the purposes of this section.

3.10 A “sole parent” rebate for a taxpayer with the sole care of dependent children is only payable to a married taxpayer if there are special circumstances (s.159K(1), (3)). The Act extends this restriction to a man and woman who, during the relevant period “have lived together as husband and wife on a bona fide domestic basis although they were not legally married to each other” (s.159K(4)).

C. Superannuation Act 1976 (Cth)

3.11 Under Part VI of the Act, a “spouse’s benefit” is payable in the event of the death of a number of the Commonwealth Superannuation Fund. The term “spouse” is defined to include
    “a person who was not legally married to the deceased person at the time of the person’s death but who, for a continuous period of not less than three years immediately preceding the person’s death, had ordinarily lived with the person as the person’s husband or wife, as the case may be, on a permanent and bona fide domestic basis.” (s.3(1))

A de facto spouse of less than three years’ standing may qualify if he or she was “wholly or substantially dependent” upon the deceased at the date of death. Restrictions are applied to claims by de facto spouses of less than five years’ standing, where the relationship began after the deceased had become a pensioner and turned 60 years of age. Temporary absences or absences through illness may be disregarded in assessing the length of cohabitation (s.3(2)).

3.12 A married spouse may claim if the couple were living together at the time of death, or if the couple were living apart and the survivor was wholly or substantially dependent upon the deceased. It is therefore possible for a person to die leaving both a legal spouse and a de facto spouse as claimants. In this event, the Act allows apportionment between the claimants by the Commissioner “having regard to the respective needs of those persons and to such other matters as he considers relevant” (s.110(1)).

D. The Family Law Act 1975 (Cth)

3.13 The Family Law Act 1975 (Cth) states the principles to be applied in adjusting the financial relationship between the parties to a marriage. The general principle is that one party to a marriage is liable to maintain the other, to the extent that the first party is reasonably able to do so, if and only if, that other party is unable to support herself or himself adequately (s.72). This inability may be because of the need to care for a child, age, incapacity for employment or any other adequate reason recognised by the Act. In exercising the power to award maintenance the court is directed to take into account a number of matters, most of which relate to financial considerations (s.75(2)). These include the financial resources of each of the parties; their financial needs and obligations; their age and state of health; their responsibilities to children and other persons; and their contributions to the income and earning capacity of the other party. In addition to the power to award maintenance the court may make an order altering the interests of the parties in property owned by them. In making any such order the court must take into account the matters relevant to an award of maintenance, as well as the respective contributions of the parties to the acquisition, conservation or improvement of the property (s.79(4)).

3.14 The Act recognises, expressly and by implication, the need to take into account de facto relationships in considering claims for maintenance or an order affecting property.

1. Responsibilities to Other Persons

3.15 In assessing the financial resources of a party to the marriage, the court must consider “the responsibilities of either party to support any other person” (s.75(2) (e)). This has been held to include the moral responsibility a party may have to a de facto spouse. Before the Family Law Act, the needs of, say, the wife (or former wife) were given priority over the husband’s obligation to support a second family, the implication being that the husband should not have undertaken further family responsibilities unless he was able to meet his financial obligations towards his first family. But it has now been held that the court, in deciding whether to order the husband to pay maintenance, must take into account his moral obligations to his present family, even if the relationship is a de facto marriage. In the leading case, the Full Court of the Family Court said that s.75(2)(e) required the court
    “to consider in a realistic way the fact that a party has assumed a responsibility to support another person ... To adopt a view that in every case the responsibility ... must be subjugated to the responsibility of the party to his or her spouse is . . . to unduly restrict the scope of the [section] and may in particular circumstances produce a result which is unrealistic . . .”16

It follows that if a married man enters into a de facto relationship with a woman who has young children and is unable to support herself, the wife’s claim to maintenance may fail. She may be told, in effect, that the husband’s limited resources are insufficient to support both families and that she should look to social security for her support.

3.16 This view has not been followed uncritically. In one case the judge reluctantly accepted that the Full Court’s interpretation of s.75(2)(e) required him to hold that expenditure by a man in supporting a de facto wife and her children was incurred pursuant to a “responsibility” within the subsection.17 The judge objected to the Full Court’s interpretation
    “which elevates a man’s mistress and her children to equal status with his present or former wife and his children . . .
    In reality, the result of such an interpretation is to create an obligation to a de facto partner in priority to the obligation to the legal family ...
    Such a result must have ... a corrosive effect upon the institution of marriage.”18

Nonetheless he regarded the Full Court’s decision as binding on him.19

2. Financial Circumstances of Cohabitation

3.17 If a party seeking maintenance (and under the 1981 amendments, either party) is cohabiting with another the court is expressly directed to take into account “the financial circumstances relating to the cohabitation” (s.75(2)(m)). Under the law before the Family Law Act 1975 (Cth), a wife was likely to lose her entitlements to maintenance if she cohabitated with another man. It has now been held that the fact that a wife is cohabiting with another man does not of itself disqualify her from maintenance. It is necessary to consider the financial circumstances of the cohabitation to determine whether her claim to maintenance should be rejected or reduced.20 This may place a party who enters into a de facto relationship at an advantage over one who remarries, since the Act states that remarriage automatically puts an end to a maintenance order, unless in special circumstances the court otherwise orders (s.82(4)). On the other hand, where the person with whom a spouse is cohabiting has independent resources, those resources may be taken into account in determining whether the spouse should receive or even pay maintenance.21

3. Other Circumstances

3.18 In maintenance and property claims the court is also to consider “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account” (s.75(2)(o)). This provision has been interpreted as allowing the court to consider the contributions made by a party during a period of cohabitation preceding the marriage, especially where children have been born and raised during that time. Thus in one case where the parties had lived together for ten years before marriage the court took into account financial and other contributions made by the wife during the cohabitation.22 In short, where a cohabiting couple ultimately marry, it is the actual period of cohabitation that is significant for the purposes of the Family Law Act, rather than the duration of the marriage.

II. STATE AND TERRITORY LEGISLATION

A. Introduction

3.19 The extent to which de facto relationships are recognised, either expressly or by implication, in the legislation of the States varies considerably.23 All jurisdictions give some rights to de facto spouses under workers’ compensation legislation, although there are important differences in the scope of the provisions. Protection has been extended to de facto spouses under fatal accidents legislation (which permits relatives of a person who has been killed by the negligent act of a third party to recover compensation from the third party for the loss they have sustained) in South Australia and the Territories. Testator’s family maintenance legislation (which permits some relatives of a person who has died without making adequate provision for them out of his or her estate to apply to the court for a share of the estate) extends to a de facto widow in Western Australia and to a de facto widow or widower in South Australia. A de facto spouse may claim a share in the estate of a person who has died intestate (without making a will) in South Australia. South Australia has also legislated to make de facto spouses eligible for concessional rates of death duty and for payments from the State superannuation fund. In Tasmania, but nowhere else, a de facto wife may, in certain circumstances, bring a claim for maintenance against her de facto husband. No State or Territory has enacted laws to deal specifically with property disputes between de facto spouses.

3.20 The position in Australia, therefore, is that de facto relationships are often recognised and regulated by legislation for specific purposes. This has not, however, been done on any systematic basis and there has been no attempt to secure uniform legislation throughout Australia. The following material briefly traces the current position in the Australian States and Territories, although the treatment is not exhaustive. Reference is made to the more important suggestions for change made by official bodies.

B. Status of Children Legislation

3.21 A matter of general significance for the law relating to de facto families is legislation in each of the Australian States dealing with the status of ex-nuptial children. In general, children living within the household of de facto spouses will be ex-nuptial children, although this will not always be so. Without exhausting the possibilities, a child living within such a household may have been born
  • to the de facto spouses (whether before or after they commenced living together); or
  • to one of the de facto spouses before entering the current relationship.

In the second case the parents of the child may or may not have been married to each other at the date of birth. Thus a child living within a “de facto household” is not necessarily an ex-nuptial child, although where the de facto spouses are the parents this will nearly always be the case.24

3.22 At one time there were important distinctions between the legal position of nuptial (or legitimate) children and ex-nuptial (or illegitimate) children.25 In particular, the respective rights and duties of parents and children differed according to whether the children had been born within marriage or outside it. At common law an illegitimate child was said to be filius nullius (the child of no-body). It therefore followed, on the traditional view, that there was no legal relationship between the child and its natural parents. This analysis is now regarded as a little misleading, since the common law, certainly as modified by principles of equity, acknowledged rights of custody and guardianship in the mother of an ex-nuptial child. Moreover, the Poor Law made the mother liable to contribute to the support of such a child. Nevertheless the common law principles meant that the ex-nuptial child suffered serious legal disabilities, especially in relation to rights of inheritance. The child was further disadvantaged by the principle of interpretation that terms such as “child” and “parent”, when used in legal documents (including legislation), were taken to refer to relationships within marriage only. One by-product of these principles was that the father of an ex-nuptial child was in a less favourable position to claim custody or access than the father of a nuptial child, even where the ex-nuptial child had been born within a stable de facto household.

3.23 In recent years all Australian States have legislated to overcome the common law disabilities of ex-nuptial children. Most have followed the lead given by New Zealand in 1969 by enacting status of children legislation which attempts to abolish the legal status of illegitimacy.26 The long title of the Children (Equality of Status) Act 1976 (N.S.W.), for example, states that its purpose is “to remove legal disabilities of ex-nuptial children [and] to facilitate the establishment of the paternity and maternity of children”. The key section of the Act provides, subject to certain qualifications as to retrospectivity, that
    “whenever the relationship of a child with his father or mother, or with either of them, falls to be determined by or under the law of New South Wales, whether in proceedings before a court or otherwise, that relationship shall be determined irrespective of whether the father and mother of the child are or have ever been married to each other, and all other relationships of or to that child, whether of consanguinity or affinity, shall be determined accordingly.” (s.6)

The effect of this section is to declare that, as between a child and his or her parents, the “child’s rights and duties are the same irrespective of whether he or she was born in wedlock or out of it”. It follows, among other things, that “the putative father occupies the same position in law in relation to his natural child as he does to his child born in wedlock”.27

3.24 The legislation recognises that this declaration is unlikely to be effective without provisions governing the establishment of paternity and maternity. Accordingly the Act restates the common law presumption of legitimacy, by providing that a child born during or within 10 months of the termination of a marriage is presumed to be the child of the husband and wife (s.10(1). A similar presumption is introduced in relation to a child born during or after a period of cohabitation between the mother and a man to whom she was not married. This presumption is in the following terms:
    “Where a woman gives birth to a child and, at any time during the period of 24 weeks commencing with the beginning of the forty-fourth week before the birth of the child, she cohabited with a man to whom she was not married, the child shall, for all purposes, be presumed to be the child of that woman and that man.” (s.10(3))

The Act goes on to provide for acknowledgments of paternity and the effect of maintenance orders for ex-nuptial children where parenthood is in issue (ss.11, 12, 14). Provision is also made for an application to the Supreme Court for a declaration of paternity or maternity in relation to a child (ss.13, 15). In these or any other civil proceedings in which paternity or maternity is in issue, the court may direct the use of blood tests for the purpose of assisting in the resolution of that issue (s.19). The court has power to draw whatever inferences it thinks fit from an unreasonable failure by a person to submit to blood tests (s.21).

3.25 The status of children legislation deals only with certain legal consequences of some de facto relationships. Nonetheless the legislation is important in determining the legal relationship between de facto spouses and their ex-nuptial children. Such matters as rights of inheritance and the interpretation of legal documents disposing of property are now governed by the legislation, in accordance with the philosophy that the relationship between parents and children is determined by the fact of parenthood rather than birth within or outside marriage. Because the legislation has been enacted so recently and is so far-reaching in character, this paper does not seek to reopen the policy questions it raised. However, the legislation has had important indirect consequences on the law concerning the custody and guardianship of ex-nuptial children. In particular, it has altered the position of the father of an ex-nuptial child, including one who lives or has lived in a de facto relationship with the child’s mother. Reference is therefore made to the Children (Equality of Status) Act 1976 (N.S.W.) when considering questions of custody and guardianship.28 The Act also forms part of the legal background which must be understood in order to assess the policy issues raised by de facto relationships.

C. New South Wales

1. Workers’ Compensation

3.26 The most significant legislation extending rights to de facto spouses is the Workers’ Compensation Act 1926. Since 1951 it has been possible for the de facto widow of a deceased worker to qualify as a “dependent” under the legislation. Dependants may be entitled to compensation in respect of the worker’s death and the Workers’ Compensation Commission is empowered to apportion compensation among the various dependents of the deceased. The term “dependents” in the Act means
    “such of the members of the worker’s family as were wholly or in part dependent for support upon the worker at the time of his death ... and includes ... a person so dependent who although not legally married to the worker, lived with the worker as the worker’s husband or wife on a permanent and bona fide domestic basis.” (s.6(1))

Until recently the definition of “dependents” in the Workers’ Compensation Act applied only to the de facto wife ‘of a deceased male worker. The Act also required the de facto wife to have lived with the deceased worker for at least three years immediately before his death (as is the case with the definition of “dependent female” under the Social Services Act 1947 (Cth)).29 In 1978 the Anti-Discrimination Board recommended that the definition of “dependents” be extended to the de facto husband of a deceased female worker and that the three year qualifying period be deleted from the legislation.30 These amendments were introduced in May 1981.31

2. Testator’s Family Maintenance

3.27 In 1977 this Commission recommended changes to the Testator’s Family Maintenance and Guardianship of Infants Act, 1916 which would have the effect, if implemented, of allowing de facto spouses to claim family maintenance from the estate of a deceased person.32 Under the existing Act claims may be made only by the surviving spouse, children and, in certain cases, the grandchildren of the deceased person (s.3(1), (1A)). The Commission considered that a wider range of persons should be eligible to claim under the legislation, but wished to avoid the inflexibility which would follow from the prescription of a specified class of eligible applicants: “ in our view circumstances, not status, should control eligibility”.33 At the same time the Commission decided against using dependency alone as a sufficient criterion for eligibility, on the grounds that to do so would further encroach on the principle of testamentary freedom and would increase the opportunities for speculative action.34 Instead the Commission argued that eligibility, except in the case of the widow, widower, child or grandchildren of the deceased, should be based on a threefold test. Under this test a person would be eligible if he or she
  • was, at any time, wholly or partly dependent upon the deceased person;
  • was, at any time, a member of a household of which the deceased person was a member; and
  • is a person whom the deceased person ought not, in the opinion of the Court, to have left without adequate provision for his proper maintenance, education or advancement in life.35

Eligible applicants might include parents and other relatives, step-children, former spouses and de facto spouses.

3.28 The Commission in its report defended the approach taken to de facto spouses.36 One commentator, for example, argued on the analogy of the Workers’ Compensation Act that the test of sometime dependency was not stringent enough and that only a de facto spouse who was dependent on the deceased at the date of death should be eligible. The Commission pointed out that such a limitation might cause injustice by excluding a “deserted” party to a de facto marriage from eligibility. Similarly, the Commission rejected any minimum period of dependence, since a rigid time limit might lead to unfair results. The report observes that eligibility to apply does not necessarily mean that the application itself will succeed. The Commission also considered the argument that the law should not encourage alternatives to marriage.
    “But we cannot ignore the fact that men and women do live together in extra-marital unions. If injustice (in the sense of avoidable hurt) may flow from the new Act not acknowledging that fact, we think it better for the community to remove the cause of the injustice (and in so doing perhaps offend some of its members) than to permit the injustice to continue. And we do not think it right that the court can overturn the testamentary provisions of a married person but not those of a person who declines to marry but nonetheless assumes marriage-like obligations. Under the present law, a person determined to preserve his testamentary freedom is better placed to succeed if he does not marry. Public policy should not countenance this situation when public policy, through the Act, recognizes that not all testators are wise and just.”37

3. Criminal Injuries Compensation

3.29 Where a person is convicted of a felony or misdemeanour, the court may direct that a sum not exceeding $10,000 (soon to be increased to $20,000) be paid out of the property of the offender to any “aggrieved person” by way of compensation for any injury or loss sustained by reason of the felony or misdemeanour.38 The term “aggrieved person”, since 1979, has included a person living with the victim as his or her spouse, where the felony or misdemeanour has caused the death of the Victim.39 The Criminal Injuries Compensation Act 1967 allows the “aggrieved person” in whose favour an order has been made to apply to the Attorney-General for payment from Consolidated Revenue of the amount specified in the order. The Attorney-General is empowered to make such a payment, after taking into account any other compensation received by the applicant in respect of the loss.

4. Domestic Violence

3.30 Recommendations affecting de facto families have also been made in the Report of the New South Wales Task Force on Domestic Violence (1981). The report recommended the enactment of a Domestic Violence Act as a means of providing greater protection to women who are the victims of domestic violence. The Act would give the police powers of entry into private premises to investigate complaints of domestic violence and would authorise a court to issue injunctions to restrain the “assaultive man” from entering the home where the circumstances justify such an order. The Task Force recommended that the court should be empowered to issue such injunctions where the parties were living in a de facto relationship.40

3.31 The Task Force also discussed the view, put forward by the Joint Select Committee on the Family Law Act, that an applicant for an injunction against domestic violence should be entitled to ask the court for a power of arrest to be attached to the order applying in the event of its breach. The Task Force accepted that this would be a step forward, but argued that the applicant should not be required to make special application for a power of arrest to be attached. In its view, the power to arrest should flow automatically from the grant of the injunction, even when the injunction was issued ex parts (that is, in the absence of the defendant in court). The Task Force recognised that a State could not pass legislation conferring powers on courts to issue injunctions where the parties are married, this being a matter covered by the Family Law Act. However, it recommended that the New South Wales Government urge the Commonwealth to amend the Family Law Act so as to attach automatically a power of arrest by the police for breach. of an injunction, whether issued after a full hearing or ex parts. It further recommended that the power of arrest in relation to injunctions should apply equally to orders made under the proposed State Domestic Violence Act.41 This Act would extend to persons living in de facto relationships.

5. Anti-Discrimination

3.32 Potentially the most far-reaching recognition of de facto relationships in New South Wales has been made by the Anti-Discrimination Act, 1977. Under this Act, discrimination on the grounds of race, sex and marital status is declared to be unlawful in specified areas. The term “marital status” is defined to include “the status or condition of being ... in cohabitation, otherwise than in marriage, with a person of the opposite sex” (s.4). Discrimination on the ground of marital status is specifically prohibited (subject to certain exemptions42) where practised by:
  • employers, in relation to applicants for employment or employees;
  • principals, in relation to commission agents;
  • trade unions, in relation to applicants for membership or members;
  • trade or professional qualifying bodies in relation to persons applying for authority to practise or current practitioners;
  • employment agencies, in relation to persons wishing to use their services;
  • providers of services to the public, in relation to customers or intending customers;
  • providers of accommodation, in relation to persons seeking accommodation or wishing to retain accommodation (Part IV).

3.33 It is therefore unlawful in New South Wales, for example, for an employer to refuse to make an offer of employment to a qualified person solely on the ground that that person is cohabiting, otherwise than in marriage, with a person of the opposite sex. The Act provides procedures for the making of complaints that the Act has been breached and the investigation, conciliation and, if necessary, adjudication of those complaints (Part IX).

3.34 The Act established the Anti-Discrimination Board, which was to undertake a review of State legislation, governmental policies and practices and the practices of all superannuation schemes, with a view to identifying cases of discrimination on grounds referred to in the Act (s.121). In its report, presented in 1978, the Board took the view that the explicit recognition of de facto relationships in the definition of “marital status” dictated the approach that should be taken in its review of the legislation.
    “Statutory recognition having been given to de facto relationships WE RECOMMEND that all legislation which affects the parties to a marriage, whether by the granting of rights, the imposition of obligations or otherwise, be amended to include the parties to a de facto relationship.”43

The Board did not consider it necessary to examine the policy arguments for and against this conclusion, treating the matter as foreclosed by the terms of the Act itself. Moreover, the Board accepted without argument the proposition that there should be no “qualifying period” during which a de facto relationship must continue before it is recognised.44 The Board was also content on this matter to follow the approach of the Anti-Discrimination Act.

3.35 [Some of the policy questions raised by the approach of the Board are referred to in Section 5 of this paper.] It should be noted, however, that prohibiting discrimination by employers, trade unions and others on the ground of a person’s marital status (including status as a cohabitee) does not necessarily lead to the conclusion that all legislative distinctions between married persons and de facto partners must be repealed. It may well be that the distinction can properly be drawn in some areas, depending on the circumstances. Indeed the Anti-Discrimination Act seems to recognise as much by creating exemptions to the prohibition in the legislation and by asking the Board to identify and report on cases where discrimination occurs, rather than legislating immediately to overcome the discrimination.

3.36 Nonetheless, the Anti-Discrimination Board treated its function as being to identify instances of legislative discrimination on the ground of marital status and to recommend means of removing the discrimination. Accordingly, the report undertook an exhaustive review of State Acts, regulations and industrial awards, identifying (among other things) provisions differentiating between the legal position of married couples and de facto partners. In general, the Board simply recommended amendments to legislation to equate the rights and duties of cohabiting couples, regardless of their marital status. For example, the Board noted that the Adoption of Children Act, 1965 (N.S.W.) provided that, except in limited circumstances, all adoption orders were to be made in favour of a “husband and wife jointly”.45 Following its general approach the Board recommended that the Act should be amended so that the term “husband and wife” would include
    “persons not legally married to each other, but who ordinarily live together as husband and wife on a permanent and bona fide domestic basis.”

This definition differed from that used in the Anti-Discrimination Act (“being . . . in cohabitation, otherwise than in marriage, with a person of the opposite sex”). The proposed definition introduced a requirement of similarity to marriage (“as husband and wife”), permanence and genuineness of the relationship. The language is close to that used in the Social Services Act 1947 (Cth).46

3.37 In some cases the Board recommended not only the extension of benefits to de facto spouses but the extension to them of the same liabilities imposed on married couples. Thus under the Land Aggregation Tax Management Act 197 1, a husband and wife are assessed as a sole owner for the purposes of aggregating land tax. The Board considered that this is an example of discrimination on the basis of marital status, in that married persons are treated less favourably than de facto spouses (who are not obliged to aggregate their holdings).47 The suggested remedy was to extend the liability to aggregate to de facto spouses.

3.38 Curiously enough, the Board did not limit itself to recommending the extension of legislation to de facto spouses. In some cases it suggested the repeal of legislation distinguishing between a married couple and de facto spouses. Thus the Board recommended the repeal of a provision which disentitles an applicant from eligibility for a money lender’s licence if his or her spouse has a licence and the spouses are not living apart.48 The Board apparently suggested this step because the legislation discriminates against married persons, although it is not clear why the Board decided against simply extending the disqualification to de facto spouses. The approach of the Board on this matter indicates that the question of reform is not necessarily limited to determining that existing rules should apply to de facto spouses as well as to married couples. It may be that the rule itself is inappropriate or, as has been suggested in relation to testator’s family maintenance in New South Wales, reform proposals should consider the applicability of the legislation to persons other than de facto spouses.

6. Superannuation

3.39 There are many superannuation schemes, government and private, in force in New South Wales. The Anti-Discrimination Board, in its report on Discrimination in Superannuation (1978), identified 30 government schemes and estimated that there were up to 30,000 private schemes many of which were very small.49 The entitlement of the de facto spouse of a contributor to benefits under the scheme (a question which usually arises on the death of the contributor) varies according to the terms of the scheme. The scheme may, for example, provide for the payment of benefits automatically to a person able to demonstrate that he or she is the surviving de facto spouse of the contributor. An alternative approach is for the administrators of the scheme to be given a discretion to make payments to a de facto spouse, perhaps on proof of dependency.

3.40 The Board’s survey of government schemes showed that 8 out of the 20 schemes supplying information gave the fund’s administrators a discretion to pay benefits to the survivor of a de facto relationship, although in only 4 cases were male survivors placed in the same position as female survivors.50 The major government scheme, the State Superannuation Fund, made no provision for the surviving de facto spouse. This differed from the position in the major schemes of three other States (Victoria, South Australia and Tasmania), although the conditions that the survivor had to satisfy varied in each case.51 Where government schemes provided for payments to a surviving de facto spouse, and a contributor died leaving both a legal spouse and a de facto spouse, the benefits were generally payable to the legal spouse. In some cases, however, the trustees of the scheme had a discretion to decide which of the competing claimants should succeed or whether the payment should be apportioned between them.

3.41 The Board’s survey of private schemes, which covered many of the larger such schemes in New South Wales, showed that in about 80% of cases trustees were authorised to pay benefits to the deceased contributor’s surviving de facto spouse.52 In practice this meant that surviving de facto partners were not specifically excluded from receiving death benefits. Whether payments were made in particular cases depended on the exercise of the powers of trustees, but usually involved proof that the surviving de facto spouse had been dependent on the deceased contributor.

3.42 The Board recommended that in all superannuation schemes, government and private, the relationship to the deceased contributor of widow and widower should extend to a surviving de facto spouse. The Board noted that the Anti-Discrimination Act did not impose any “qualifying” period for the status of being in cohabitation, otherwise than in marriage, with a person of the opposite sex. This led the Board to conclude that no qualifying period should be applied to de facto relationships recognised for the purposes of superannuation schemes. The extended definition of widow and widower was to be applied in determining eligibility for benefits on the death of a contributor and in determining that a pension should cease on “re-marriage”.

3.43 Our terms of reference require us to take into account the work already completed by the Anti-Discrimination Board on superannuation. We understand that the Board’s proposals are currently under consideration by the State Superannuation Advisory Committee.

7. Death Duties

3.44 The Stamp Duties Act 1920 imposes duty on the estates of deceased persons, the rates of duty varying according to the size of the estate and other circumstances. Concessional rates of duty apply where the estate passes to the surviving spouse of the deceased. No specific provision is made for the case where the estate passes to a surviving de facto spouse of the deceased. In practice, however, a concession has been available since 1968 in such a case, provided the surviving de facto spouse makes the appropriate request to the Commissioner of Stamp Duties.53

3.45 The surviving de facto spouse of a deceased person, who is a beneficiary under the will of that person, is required to furnish evidence in a statutory declaration showing that he or she has lived with the deceased as husband or wife (as the case may be) for at least three years. If satisfied that the claim is genuine, the Commissioner of Stamp Duties makes a submission to the Treasurer for an ex gratia payment to the claimant. The payment is equivalent to the difference between the duty assessed on the estate of the deceased and that which would have been assessed had the claimant been married to the deceased. The Commissioner makes a similar submission to the Treasurer where the relationship has lasted for less than three years but the parties have a child. Since 1968 approximately 1,000 applications have been made for assessment at the concessional rates of duty on the ground that the beneficiary under the will of the deceased was his or her de facto spouse.

3.46 The Stamp Duties Act 1920 has never been amended to give legislative backing to this administrative practice, which nonetheless has Government approval. The Government has announced that death duties will not be imposed in respect of the estates of persons dying after 31 December 1981.

D. Victoria

3.47 Recognition may be accorded de facto relationships under Victorian law in the Workers’ Compensation Act 1958. A de facto spouse of a deceased worker may be a “ dependent” for the purposes of the Act, if wholly or partly dependent on the worker’s earnings at the time of his or her death.54 Similarly, the Motor Accidents Act 1973, which establishes a system of no fault compensation for persons sustaining injuries in road accidents, defines “dependent spouse” to include a woman living with a man immediately prior to his death on a permanent and bona fide domestic basis, and wholly or mainly dependent on him for economic support.55 Victoria’s Equal Opportunity Act, which prohibits discrimination on the ground of sex or marital status in a fashion broadly similar to that of New South Wales, defines “ marital status” so as to exclude de facto spouses.56 There is thus no general prohibition of discrimination on the ground of de facto marital status in Victoria.

3.48 The Victorian Equal Opportunity Board, in its Report for year ended 30 June, 1979, recommended that s.3(1)(b) of the Motor Accidents Act 1973 be extended in scope to cover economically dependent males in de facto relationships. This would enable them to apply under the Act for benefits presently payable only to de facto wives. The recommendation was made on the basis of the sexually discriminatory character of the present entitlement.

E. Queensland

3.49 The Workers’ Compensation Act 1916-1980 allows a de facto wife to qualify as a dependent if she has lived in a “ connubial relationship” with the worker for a continuous period of three years.57

3.50 The Queensland Law Reform Commission has recommended that testator’s family maintenance legislation be extended to a surviving de facto spouse who is the parent of the deceased’s illegitimate child.58

F. South Australia

1. Family Relationships Act 1975 (S.A.)

3.51 In South Australia a more comprehensive attempt has been made to give a surviving de facto spouse rights equivalent to those of a surviving lawful spouse.59 The policy of the Family Relationships Act 1975 was said by the Attorney-General to be
    “that where two people are living together in an established de facto relationship the parties in that relationship should, for certain purposes, be entitled to the same rights and benefits as lawful spouses.”60

The Act permits a person to apply to the court for a declaration that he or she is a “putative spouse”. The Act itself does not specify the consequences that flow from the declaration. These consequences flow from other Acts which were amended in 1975. The amendments have the effect of giving a surviving putative spouse broadly the same rights as a surviving lawful spouse in certain areas:
  • A putative spouse is entitled to apply for testator’s family maintenance in the same way as a lawful spouse.61
  • A putative spouse enjoys the same exemption from estate duty as a surviving spouse.62
  • A putative spouse of a person dying intestate is entitled to participate in the distribution of the estate of that person. If there is no lawful spouse the putative spouse takes the entire spouse’s share. If the person dying intestate is survived by both a lawful spouse and a putative spouse they share the spouse’s entitlement equally.63
  • Where a putative spouse survives a contributor to the government superannuation scheme, he or she may apply for a spouse’s pension and may be able to take to the exclusion of a legal spouse.64
  • A putative spouse may bring an action under the Wrongs Act 1936-1975 in respect of the death of the deceased spouse, where the death is the result of the “act, neglect or default” of another person.65 Where the deceased is survived by both a lawful spouse and a putative spouse the “solatium” payment provided for by the legislation is apportioned between them in such manner as the court thinks just.66
  • A putative spouse of a victim of crime is entitled to share in the compensation awarded for loss caused by the death of that person.67

No provision has been made for living “putative spouses” to pursue claims for maintenance or property settlement against each other.

3.52 The Family Relationships Act 1975 (S.A.) provides that a person is a putative spouse if on the relevant date he or she is
    “cohabiting with [the other] person as the husband or wife de facto of that other person and
      (a) he [or she]
      (i) has so cohabited with that other person con-tinuously for the period of five years immediately preceding that date; or
      (ii) has during the period of six years immediately preceding that date so cohabited with that other person for periods aggregating not less than five years; or
      (b) he [or she] has had sexual relations with that other person resulting in the birth of a child.” (s.11(1))

This definition has been criticised. A childless couple must cohabit for a period of five years before either can acquire the status of a putative spouse, despite the fact that a relationship of three or four years’ duration may be stable and apparently permanent. On the other hand, a very short and unstable period of cohabitation by a couple who have had a child (not necessarily born during the period of cohabitation68) enables the parties to qualify as putative spouses.69

3.53 The legislation has also been subject to more general judicial criticism. In one case the South Australian Chief Justice expressed his views in strong terms:
    “The result of the legislation on any construction of it, is that a person who has cohabited with another without any intention of undertaking the legal, moral and social obligations of marriage, and perhaps with a positive intention not to do so, will be in a position to claim a share of that other’s estate in an intestacy or under the Inheritance (Family Provision) Act or damages under the Wrongs Act and to do so in competition with the lawful spouse ... "
    The truth is that the courts will have to face consequences flowing from the legislation ... which to many will seem bizarre and at times unjust, perhaps cruelly unjust. Such consequences are, in my opinion inherent in the concept embodied in it.70

The Chief Justice considered that it was not possible to employ techniques of interpretation to avoid unjust or absurd results, since the effect of the statutory language was clear. The court held that a divorced woman, who resumed cohabitation with her former husband for a short period before his death, was a putative spouse on the ground that the parties had had sexual relations resulting in the birth of a child (s.11(1)(b)). It was not to the point that the child had been born while they were married and not during the cohabitation.

2. Sex Discrimination Act 1975 (S.A.)

3.54 Further far-reaching recognition of de facto relationships was made in South Australia in the Sex Discrimination Act 1975. Under this Act, discrimination on the grounds of sex and marital status is declared to be unlawful in specified areas. The term “marital status” is defined to include “the status or condition of... cohabiting otherwise than in marriage with a person of the opposite sex” (s.4). Discrimination on the ground of marital status is specifically prohibited (subject to certain exemptions) where practised by:
  • employers, in relation to applicants for employment or employees;
  • principals, in relation to commission agents and contract workers;
  • partnerships, in relation to applicants for positions and partners;
  • trade unions and employer organisations in relation to applicants for membership or members;
  • qualifying bodies, in relation to persons applying for authorisations or qualifications necessary for trades and professions;
  • employment agencies, in relation to people using their services;
  • educational authorities, in relation to students;
  • providers of goods and services to the public;
  • providers of accommodation, in relation to persons seeking accommodation or wishing to retain accommodation.

Actions done under the authority of State legislation or statutory instruments (or industrial awards) are not made unlawful (s.35). Similarly, discrimination on the ground of marital status is not unlawful in superannuation schemes.

3.55 Under the Act in South Australia it is unlawful, for example, for an estate agent to refuse to offer rented accommodation to a person solely on the ground that that person is cohabiting otherwise than in marriage with a person of the opposite sex. The Act provides for making complaints of unlawful discrimination, and establishes a procedure for investigation, conciliation or eventual adjudication of complaints. A successful complainant whose complaint goes to adjudication may be awarded damages, including damages for injury to feelings (s.41).

G. Western Australia

1. Workers’ Compensation

3.56 The Workers’ Compensation Act 1912-1978 provides that the term “widow” in relation to compensation payable in respect of the death of a worker includes
    “a woman, who although not legally married to him
      (i) lived with him on a permanent and bona fide domestic basis immediately before his death, if he leaves any dependent who is the child of the union between him and the woman; or
      (ii) lived with him on such a basis for not less than three years, if he does not leave any such dependent.” (s.5)

2. Testator’s Family Maintenance

3.57 The Inheritance (Family and Dependants Provision) Act 1972 specifically permits a “de facto widow of the deceased” to apply to the court for provision out of his estate. The de facto widow is eligible provided that at the time of the man’s death she was
  • being wholly or partly maintained by him;
  • ordinarily a member of his household; and
  • a person for whom the deceased, in the opinion of the court had some special moral responsibility to make provision (s.7(1)(f)).

It is interesting that this formulation differs from that recommended by the Western Australia Law Reform Committee in its 1970 report which provided the basis for the legislation.71 The Committee’s draft Bill made no specific reference to de facto widows, but allowed any person satisfying the three criteria to make a claim on the estate. The legislation in its final form therefore narrowed the class of eligible claimants, but made the position of de facto widows clear.72

3. Fatal Accidents Legislation

3.58 The Law Reform Commission of Western Australia recommended in 1978 that a person, although not legally married to the deceased, should be able to claim damages under the Fatal Accidents Act if he or she
    “(a)was immediately before the death of the deceased, living with the deceased as wife or husband, as the case may be, on a permanent and bona fide domestic basis, if the deceased leaves a child who is the child of the union between the deceased and that person, or
    (b) had lived with the deceased on a permanent and bona fide domestic basis continuously for a period of at least five years immediately preceding the death of the deceased, if the deceased does not leave any such child.”73

H. Tasmania

1. Maintenance and Workers’ Compensation

3.59 Tasmania has a provision, unique in Australia, under which a de facto wife may claim maintenance from her de facto husband.74 This provision dates from 1837 and is now embodied in the Maintenance Act 1967. Under s.16 a woman who has cohabited with a man for a period of at least twelve months may obtain a maintenance order if the man, without just cause or excuse, leaves her without adequate means of support, or deserts her, or is guilty of such misconduct as to render it unreasonable to expect her to continue to live with him. The maintenance proceedings must be brought within six months of the end of the cohabitation. Tasmanian law also recognises the right of a “dependent female” to claim workers’ compensation payments in respect of the death or disablement of the worker on whose earnings she is dependent.75

2. Tasmanian Law Reform Commission Proposals

3.60 In 1977 the Tasmanian Law Reform Commission proposed that further legal recognition should be extended to de facto spouses. The Commission was of the view that cohabitation, of itself, should not lead to legal consequences. Rather,
    “rights and obligations in this context should only be conferred or imposed on proof of dependency, and... this should be for the purpose of relieving hardship and injustice only.”76

The Commission considered that, in general, dependency should be accompanied by proof of twelve months’ continuous cohabitation, a period chosen by reference to the provisions of the Maintenance Act. However, the report recognised that in special circumstances indicating hardship, the court should be able to entertain a claim based on a shorter period of cohabitation, provided that dependency can be established. No attempt was made to define dependency for the purposes of the proposed legislation, this being a matter to be determined by the court in each case. The Commission contemplated that dependency would have to be established as existing on the date of the event (such as the death of the partner) on which the claim is based.

3.61 The Commission recommended amendments to give effect to this principle in relation to workers’ compensation claims, fatal accident claims, testator’s family maintenance, estate duties and the no-fault motor accidents scheme.77 The Commission also recommended that de facto husbands, as well as de facto wives, should be entitled to claim under the Maintenance Act. The Tasmanian scheme is discussed further in Section 5.78

1. Australian Capital Territory and Northern Territory

3.62 Both Territories permit a. de facto spouse to claim under fatal accidents legislation in respect of the death of his or her partner caused by the “act, neglect or default” of a third party.79 The Territories also permit workers’ compensation claims by the de facto wife of a deceased worker.80

  

FOOTNOTES

1. Constitution, s.51(xxiii).

2. The amendment was inserted into Constitution, s.5 1 (xxiiiA). It empowers the Commonwealth Parliament to make laws with respect to:
    “the provision of maternity allowances, widows pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances.”

3. Social Services Act 1947 (Cth), s.59(1).

4. Department of Social Security, Annual Report 1980-81 (A.G.P.S., 1981), Table 19.

5. See now Social Services Act 1947 (Cth), s. 1 8. The 1975 amendment also shortened the phrase “permanent and bona fide domestic basis” to “bona fide domestic basis”.

6. Social Services Act 1947 (Cth), ss.28, 29.

7. See Social Services Act 1947 (Cth), s.83AAA(1). It should be noted that a “deserted wife” and a divorcee who has not remarried may be eligible for a widows’ pension: s.59(1).

8. Department of Social Security, n.4 above, Table 29.

9. See generally R. Sackville, “Cohabitation and Social Security Entitlement” in Essays on Law and Poverty: Bail and Social Security (A.G.P.S., 1977), 80-92.

10. Social Services Act 1947 (Cth), ss.18, 28, 29.

11. Social Services Act 1947 (Cth), s.59(1). These words were inserted in the Act only in 1975. Before that date, the cohabitation rule, as applied to widows’ pensioners, lacked a firm statutory basis: R. Sackville, n.9 above, 81-92.

12. Social Services Act 1947 (Cth), s.83AAA(1).

13. Waterford v. Director-General of Social Services (1980) 1 Soc. Sec. Rep. 1.

14. Lambe v. Director-General of Social Services (1980) 1 Soc. Sec. Rep. 5, 6.

15. R C. v. Director-General of Social Services (Administrative Appeals Tribunal, 16 July 1981).

16. Soblusky and Soblusky [1976] F.L.C. 90-124, at 75, 589.

17. Baber and Baber [1980] F.L.C. 90-90 1.

18. [1980] F.L.C. 90-901, at 75, 674.

19. On the facts Lambert J. held that the man had not discharged the onus of showing that his de facto wife’s former husband (the father of her children) was unable to comply with a maintenance order which had been made against him. See also Murkin and Murkin [1980] F.L.C. 90-806.

20. Grabar and Grabar [1976] F.L.C. 90-147. The Family Law Amendment Bill 198 1, cl.26 directs the court to examine the financial circumstances of the cohabitation of either party when considering maintenance.

21. Patterson and Patterson [1979] F.L.C. 90-705. This case was decided on the basis of s.75(2)(o). The 1981 amendments will mean that such situations will be governed by s.75(2)(m).

22. Olliver and Olliver [1978] F.L.C. 90-499.

23. See generally RJ. Bailey “Legal Recognition of De Facto Relationships” (1978) 52 A.L.J. 174; J. Wade De Facto Marriages in Australia (1981).

24. It is of course possible for a divorced couple to resume cohabitation without remarrying. In this case their children, born while they were married, will not be ex-nuptial children. This was the situation in Lesiw v. Commr. of Succession Duties (1979) 20 S.A.S.R. 481.

25. See generally R. Sackville and A. Lanteri, “The Disabilities of Illegitimate Children in Australia: A Preliminary Analysis” (1970) 44 A.L.J. 5, 51; Gorey v. Griffin [1978] 1 N.S.W.L.K 739, 749-750 per Mahoney J.A.

26. The legislation is the Children (Equality of Status) Act 1976 (N.S.W.); Status of Children Act 1974 (Vic.); Status of Children Act 1978 (Qld.); Family Relationships Act 1975 (S.A.); Status of Children Act 1974 (Tas.); Status of Children Act 1978 (N.T.). Western Australia has achieved a similar result by amendments to specific legislation dealing with inheritance and other matters.

27. G. v. R [1977] V.R- 44, 46, per Kaye J., approved by the High Court in Douglas v. Longano (1981) 55 A.L.J.R. 352. The comments were made in relation to the Status of Children Act 1974 (Vic.), s.3(1), which is the equivalent of the Children (Equality of Status) Act 1976 (N.S.W.), s.6.

28. See paras.4.33-4.34 below.

29. See n.3 above and text accompanying note.

30. Anti-Discrimination Board, Discrimination in Legislation (1978), vol. 1, 127.

31. Workers’ Compensation (Amendment) Act 1981 (N.S.W.), Schedule 1, s.1.

32. N.S.W. Law Reform Commission, Report on The Testator’s Family Maintenance and Guardianship of Infants Act, 1916 (L.R.C. 28, 1977).

33. N.S.W. Law Reform Commission, Working Paper on Testator’s Family Maintenance and Guardianship of Infants Act 1916 (1974), 67ff.

34. Ibid., 65.

35. Report, n.32 above, 9.

36. Ibid., 23.

37. Ibid.

38. Crimes Act 1900, s.437(1).

39. Crimes Act 1900, s.437(4).

40. See Report of the New South Wales Task Force on Domestic Violence (1981), 65-66.

41. Ibid., 57-63. The Family Law Amendment Bill 1981, cl.49 inserts a new s.114AA in the Family Law Act. Courts exercising jurisdiction under the amended Act will be empowered to attach a power of arrest to an injunction for the personal protection of a party to, or a child of the marriage, and to an injunction excluding a person from certain premises. The court may attach a power of arrest where it is satisfied that the person against whom the injunction is directed has caused bodily harm to a party to, or a child of the marriage, and is likely to do so in the future. An arrested person must be brought before a court within 24 hours to be dealt with for breach of the injunction. A power of arrest will cease to have effect 6 months from the date of the order, unless an earlier date is specified in the order.

42. See Part VI for the general exceptions. The Act does not apply, for example, to acts done under statutory authority or the practices of religious bodies (ss.54, 56). Superannuation funds are exempted from the general prohibition on discrimination on the ground of marital status.

43. Anti-Discrimination Board, Discrimination in Legislation (1968), vol. 1, 6.

44. Ibid.

45. See paras.4.44-4.46 below.

46. See text accompanying n.3 above.

47. Anti-Discrimination Board, n.43 above, 61.

48. Ibid., 77.

49. Anti-Discrimination Board, Discrimination in Superannuation (1978), 6.

50. Ibid., 158.

51. Ibid., 166-167.

52. Ibid., 128-129.

53. The following information was provided by the Commissioner of Stamp Duties: letter to Commission, dated 17 September 1981.

54. Workers’ Compensation Act 1958 (Vic.), s.3(1).

55. Motor Accidents Act 1973 (Vic.), s.3(1).

56. Equal Opportunity Act 1977 (Vic.), s.3(1).

57. Workers’ Compensation Act 1916-1980 (Qld), s.3(1).

58. Queensland Law Reform Commission, Report on the Law Relating to Succession (1978), 26.

59. See R.J. Bailey, n.23 above, 174-176. As to workers’ compensation in South Australia, see Workers’ Compensation Act 1971-1979 (S.A.), s.8(1).

60. S.A. Parl. Deb., House of Assembly, 28 October 1975, 1469 (Mr. P. Duncan).

61. Inheritance (Family Provision) Act 1972-1975 (S.A.), s.4.

62. Succession Duties Act 1929-1979 (S.A.), s.4(1).

63. Administration and Probate Act 1919-1975 (S.A.), s.72h(2).

64. Superannuation Act 1974-1979 (S.A.), s.121.

65. Wrongs Act 1936-1975 (S.A.), ss.19, 20.

66. Wrongs Act 1936-1975 (S.A.), s.23(b)(3).

67. Criminal Injuries Compensation Act 1977-1978 (S.A.), s.4 (definition of “dependents”).

68. Lesiw v. Commissioner of Succession Duties (1979) 20 S.A.S.R. 481.

69. In re Fagan (1980) 23 S.A.S.R. 454, 464.

70. Lesiw v. Commissioner of Succession Duties (1979) 20 S.A.S.R. 481,485.

71. W.A. Law Reform Committee, Report on the protection to be given to the Family and Dependants of a Deceased Person (Project No.2, 1970).

72. As to interpretation of the definition of de facto widow see Aylmore v. Durack [1977] A.C.L.D. 785.

73. W.A. Law Reform Commission, Report on Fatal Accidents (1978), para. 3.3 2.

74. W.H. Craig and M.F.C. Scott, “The Maintenance of Concubines” (1962) 1 U. Tas. L. Rev. 685.

75. Workers’ Compensation Act 1927 (Tas.), s.3(1) as amended by Workers’ Compensation Act 1966 (Tas.), s.2.

76. Tasmanian Law Reform Commission Report on Obligations Arising from De Facto Relationships (1977), 6.

77. Ibid., 7-8.

78. See paras.5.21-5.25 below.

79. Compensation (Fatal Injuries) Ordinance 1968 (A.C.T.), s.4(2)(h); Compensation (Fatal Injuries) Act (N.T.), s.4(3)(c).

80. Workmens’ Compensation Ordinance 1951 (A.C.T), s.6(1); Workmens’ Compensation Ordinance 1949 (N.T.), s.6(1).

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