WHY INQUIRE?

Why should the Law Reform Commission inquire into the law governing de facto relationships? The formal answer is simple: the Attorney-General has directed us to do so and therefore we are obliged to report on whether the law is in need of reform. There are, however, more satisfying answers to the question.

First, more and more legal problems associated with de facto spouses and their families are coming to the attention of the courts and of lawyers generally. In part this is because the number of people living in de facto relationships appears to be increasing. (The Paper examines the available Census statistics in Section 2). It also appears that de facto spouses are increasingly likely to bring disputes over such matters as property and custody before the courts. Whatever the explanation, judges are now commenting regularly on the increasing frequency with which they encounter the legal problems of de facto families.

Second, there is evidence of mounting dissatisfaction with the existing law. This dissatisfaction is often expressed by judges who consider that the law forces them to reach unjust results in particular cases. Usually (but not always) it is the woman who suffers hardship. For example, in one recent New South Wales case a woman had lived with a man as his wife for 20 years in his house, performing household tasks and caring for him in his illness. Her claim for a share in the house after the man’s death failed because the court could not find evidence of a “common intention” that she should share the ownership of the house. The judge said that the case was one in which “injustice [resulted] from the failure of the law to adapt to changing patterns of cohabitation”. In another case a woman lived with a man as his de facto wife for two years before his death. She provided him with substantial financial assistance, but the money had not been used for the acquisition or improvement of the house in question. The woman’s claim to a share in the house failed, the judge observing that the existing law could cause “significant hardship”.

The dissatisfaction with the current law is also reflected in the activities of law makers and law reform bodies. For example, South Australia passed legislation in 1975 to improve the legal position of a de facto spouse whose partner has died. In 1977 the Tasmanian Law Reform Commission issued a report proposing important changes to the law of de facto relationships in that State. In New South Wales official agencies have pointed to defects in the existing law, including the failure of the law to provide adequate remedies for a de facto spouse threatened with domestic violence.

The fact that some people or bodies have expressed dissatisfaction with the existing law does not necessarily mean that the law requires sweeping changes: minor amendments may be enough. The point is simply that there are questions worthy of serious examination. The Issues Paper does not attempt to make recommendations or even to state preferences. The purposes of the Paper are, first, to describe the current law and the social setting in which it is applied; and, second, to set out policy questions for the guidance of people and organisations wishing to make submissions or comment on the reference.

THE EXISTING LAW

In the short period since we received our reference, we have often heard it said that the question is whether the law should recognise de facto relationships. In fact, the law already recognises and regulates de facto relationships for a variety of purposes. This is true both of Commonwealth legislation (which applies throughout Australia) and State legislation, although there are important differences among the States. Some examples show the wide range of circumstances in which the law expressly recognises de facto relationships:

Commonwealth Legislation: Some Examples

• Commonwealth legislation has, since 1942, made “de facto widows” eligible to receive the widows’ pension. The current legislation states that a woman is eligible for the widows’ pension, provided that for at least three years before the death of the man she
  
  “was wholly or mainly maintained by him and, although not legally married to him, lived with him as his wife on a pen-nanent and bona fide domestic basis.”
  
• The Family Law Act 1975 is concerned primarily with disputes between husbands and wives. The Act acknowledges that in deciding maintenance claims between husband and wife the court should take into account whether either or both parties, at the time the case is heard, are living in a de facto relationship with someone else. In assessing the respective financial resources of the husband and wife the court must consider “the responsibilities of either [of them] to support any other person”. This has been interpreted to include, say, the husband’s moral responsibility to support a woman with whom he is now living in a de facto relationship. This may mean that the de facto spouse, if she is unable to support herself, may have the first claim on the husband’s resources, perhaps to the exclusion of the wife’s claim to maintenance. If the spouse claiming maintenance is living with somebody else in a de facto relationship the court is directed to take into account “the financial circumstances relating to the cohabitation.” So where the wife is living in a de facto relationship with another man, and she receives financial support from that man, she may have no claim for maintenance against her husband.

• In all Australian States, workers’ compensation legislation permits the de facto widow of a deceased worker to be classified as a “dependent”. She is therefore entitled to receive compensation on the death of her de facto husband if he is killed in a work-related accident. The New South Wales Act is generous by comparison with the legislation of other States. It also permits the surviving de facto husband of a deceased female worker to claim compensation. Moreover, unlike other States, the New South Wales legislation does not require the claimant to have lived with the deceased worker for any particular period before being eligible to claim compensation.

• In two States a surviving de facto spouse may be able to claim “testator’s family maintenance”. (A testator is a person who makes a will). This means that if, for example, a man fails to provide adequately in his will for his de facto wife she may apply to the court, on his death, for a share of his estate. We recommended in a 1977 report that New South Wales law should permit de facto spouses to claim testator’s family maintenance, but this recommendation has not yet been implemented.

• In Tasmania (but nowhere else in Australia), a de facto wife may, in certain circumstances, claim maintenance payments from her de facto husband for her own support.

• In some States, the major government superannuation schemes provide for payments to the surviving de facto spouse of a deceased contributor. The New South Wales Anti-Discrimination Board has recommended that similar provisions be included for superannuation schemes in this State.

Property	The Family Law Act 1975 (a Commonwealth Act) gives the Family Court power to alter the property rights of husband and wife. The Court must take into account a number of matters set out in the Act, but it can decide future ownership of property according to what is “just and equitable”, irrespective of which party has the formal title to the property. The Family Law Act does not apply to prop-erty disputes between de facto spouses. These disputes are decided under State law and that law does not give the court any discretion to alter the parties’ property rights, even where the court thinks that an alteration is necessary to achieve fairness between the parties.
Maintenance	The Family Law Act allows a court to make a maintenance order in favour of one party to the marriage against the other. Under New South Wales law a de facto spouse cannot obtain an order for his or her support.
Domestic violence	The Family Law Act allows the Family Court to issue injunctions at short notice to protect a married person (usually the wife) against domestic assault. While it may be possible for a de facto spouse who is threatened with domestic violence to obtain an injunction from a State court, there is no convenient or accepted procedure for doing so. Other forms of legal protection against domestic violence under State law are cumbersome and often ineffective.
Child custody	Disputes between married couples concerning the custody of their children are decided by the Family Court. This is a specialist court, which has counsellors and welfare officers attached to it and which uses novel procedures designed to minimise the bitterness associated with matrimonial disputes and to promote the welfare of the children. The Family Court cannot hear custody (or other) disputes between de facto spouses. In New South Wales such disputes may be heard by any one of several courts. While the State courts regard the welfare of the child as the paramount consideration, in general they do not have the facilities or procedures of a specialist family court.
Adoption	A married couple may adopt a child jointly People living in a de facto relationship may not adopt a child jointly, even where one partner is the natural parent of the child.
Estates	Under New South Wales law a person whose de facto spouse has died cannot claim a share of the spouse’s estate (except of course where he or she is a beneficiary under the will of the deceased person). A married person has rights under the law of testator’s family maintenance (see above) and the law of intestacy (which governs the distribution of the property of a person who dies without making a will).

The Issues Paper notes that

“In one sense it is too late to ask whether the law should attempt to regulate by legislation the rights and duties of de facto spouses (whether as between themselves, or in relation to other persons or government). ...Australian law for many years has specifically acknowledged the existence and consequences of such relationships in areas such as social security and workers’ compensation. The significant question is therefore not whether the law should expressly govern de facto relationships but how much further (if at all) the process of regulation should be taken. Specifically it is important to ask to what extent (if at all) the rights and duties of cohabiting couples should be assimilated to those of married couples.”

The Paper examines, in a preliminary way, what can be said about the nature of de facto relationships in Australian society. This sets the social background to the legal issues.

The Paper shows that Australian patterns of marriage, divorce, and living together without marriage have been changing in the 1970s. The proportion of people going into their first marriage has declined; the age at which both men and women marry for the first time has been going up; a higher proportion of marriages end in divorce, and there are strong indications of an increase in de facto relationships, particularly among young people who have never been married and among divorced and separated people.

These changes have been linked to the downturn in the economy since 1974 which has forced some people to postpone marriage, in some cases indefinitely. These economic conditions may have had their greatest effect on the marriage chances of poorer people.

At the same time, there have been changes in social attitudes: there is an increasing acceptance of de facto relationships, particularly among young, never-married tertiary educated people. These groups are likely to see de facto relationships as being free from many of the legal and social constraints and financial obligations imposed by formal marriage.

As a combined result of these two trends, it appears that an increasing number of Australians are living together without being formally married and almost 50 per cent of these families contain children, according to an analysis of 1976 Census Tables.

However, the paper also identifies another type of de facto relationship: long-term relationships usually among older people who have been living together “as married” for a considerable period of time. These relationships may have been established as a response to some of the legal, financial, emotional and religious problems formerly (and in some cases, still) associated with divorce.

To get some idea of the number of people involved in de facto relationships we made a calculation based on Australian Census figures. We tentatively conclude that for 1976 it is possible to identify about 66,000 families which are headed by a couple living together without being formally married (23,000 in New South Wales). However, official figures which directly confirm this estimate are not available. Not all of these families, of course, will necessarily experience any of the legal problems identified in the Paper.

The considerable number of de facto relationships involving children suggests that our inquiry should take into account the importance of parental responsibilities. It also highlights the complexity of de facto relationships, many of which are likely to involve considerable financial and emotional ties.

THE POLICY ARGUMENTS

The Paper sets out the major arguments for and against further regulation of de facto relationships. These are, in summary:

Against further regulation

• To grant de facto spouses the same rights and duties as married spouses, even in limited areas, would undermine the institution of marriage.
• To grant additional rights to de facto spouses may produce a contest between a legal spouse and a de facto spouse. Therefore the rights of a legal spouse may be adversely affected by the improved legal position of a de facto spouse.
• To attach rights and duties to people who live together without marrying subjects them to legal rules which they may have chosen to avoid.
• To grant further legal protection to de facto families reinforces the assumption that women are dependent on men.
• Once the law specifically acknowledges and regulates de facto relationships, there is no logical basis for refusing to take a similar approach to other domestic relationships such as brother and sister households, homosexual unions and extended families.
• To regulate de facto relationships further creates the difficulty of defining such a relationship for legal purposes.
• Regulation of de facto relationships would require far reaching changes to the law. Some of these changes might upset arrangements people have made in reliance on existing law, or. create uncertainty.
• Further legal regulation implies that more people will be in a position to make claims, directly or indirectly, on the government or the community generally. For example, if a de facto spouse can claim compensation for the death of a partner, the cost of compensation schemes to the community will be increased.

• The law cannot ignore de facto relationships except at the price of causing injustice. The fact that de facto relationships have long been expressly acknowledged by the law demonstrates the futility of the argument that they should simply be ignored.
• De facto spouses have the same need for assistance from the law in resolving questions about their rights and duties as do married couples in similar circumstances.
• The problem of defining a “de facto relationship” need not be a major stumbling block. Several different legal definitions are already in use. If it is decided that de facto spouses should be eligible for benefits the law might provide, law makers are capable of defining what sort of relationship should entitle a spouse to the benefit.
• Since a major reason for regulating de facto relationships is the similarity between them and marriages, there is no compelling reason why similar regulations will be required for other domestic relationships which do not share the characteristics of marriage.
• Unless the rights and duties of de facto spouses are regulated by legislation, de facto relationships provide opportunities for exploitation.
• The alternative to further legal regulation of de facto relationships may be that the burden of support will fall on the social security system rather than on family members. For example, a de facto spouse who is permitted to claim a share of the estate of a deceased partner may thereby avoid the need to claim a government pension.
• Providing legal protection to de facto spouses need not reinforce any stereotyped notions of female dependence. In any case, family law relating to married couples no longer relies on these stereotyped notions.
• It is likely that few people going into de facto relationships give careful consideration to the legal consequences of their actions. In addition, the reasons why couples form de facto relationships may alter during the course of their living together. In any event it is possible to accommodate those who do not wish to be bound by conventional rules, by allowing them to make their own agreements.

Assuming that some regulation of de facto relationships is desirable, the question arises as to the form that regulation should take. The Paper identifies a number of approaches that could be taken. In doing so it is not intended to suggest that a case for reform has been made out. The purpose is to indicate the range of policy alternatives that need to be considered.

Equating Marriages and De Facto Relationships

The most sweeping approach would be to equate the rights and duties of de facto spouses with those of married couples. This could be done, in theory, by redefining “marriage” to include all de facto relationships. In Australia, quite apart from the policy questions raised by such a proposal, it would encounter overwhelming constitutional obstacles.

An alternative to redefining marriage is for the State to pass a series of specific measures designed to provide de facto spouses with the same rights and rights as apply to married couples. The New South Wales Anti-Discrimination Board, for example, has recommended 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.”

Granting De Facto Spouses Rights on Proof of Dependence

In 1977 the Tasmanian Law Reform Commission proposed that further legal recognition should be extended to de facto relationships, but that such relationships should not be treated automatically as if they were legal marriages. The Commission recommended that recognition should be based on proof of dependence, but that it should be open to a de facto spouse to prove dependence only where the parties had lived together for at least twelve months.

Limited Equation of Marriages and De Facto Relationships

The South Australian Family Relationships Act 1975 allows a person who has been living in a de facto relationship to apply to the court for a declaration that he or she is a “putative spouse”. A putative spouse is defined as a person (i) who has lived with another person for at least five years, or (ii) who has lived with that other person for a lesser period but has had sexual relations with the person resulting in the birth of a child.

A person who has been declared to be a “putative spouse” has the same rights as a married person in relation to such matters as succession to property, superannuation benefits and damages claims in respect of the death of a partner. The South Australian Act makes no provision for “putative spouse” to bring claims for maintenance or for an adjustment of property rights.

Amendments to Specific Areas of Law

A fourth approach avoids attempting a general definition of de facto relationships. It requires an examination of each area of law in which legislative regulation of de facto relationships is an issue. A judgment then has to be made as to whether such relationships should be regulated further and, if so, what form the regulation should take.

SOME QUESTIONS

Having identified four major options, we ask a series of general and specific questions to which we invite responses. The following are some of the questions asked.

General Questions

1. Are the arguments for and against further legal regulation of de facto relationships stated fairly? Are there any other arguments which should be taken into account?

2. Are there any other questions which should be put? Should the Commission carry out its own research before coming to any conclusion, and if so, what sort of inquiries should it make?

3. Is there a case for greater legal regulation of de facto relationships? If so, what approach should the law take?

4. Are there special problems in relation to minority groups, such as Aboriginal and ethnic communities, that require particular attention?

Specific Questions

1. Property claims: Should State courts be given powers’ similar to those the Family Court has in relation to married couples, to alter the property rights of de facto spouses according to what is “just and equitable”?

2. Maintenance claims: Should legislation enable de facto spouses to bring maintenance claims against their partners? If so, should the principles be the same as those applied to married persons under the Family Law Act?

3. Domestic violence: Should the courts have specific powers to restrain acts of violence within the households of de facto spouses, and if so, what should these powers be?

4. Custody, guardianship and maintenance of children: Should the States refer power to the Commonwealth to make laws with respect to the custody, guardianship and maintenance of ex-nuptial children (including children born to de facto spouses), to allow these matters to be dealt with by the Family Court in the same way as cases involving children born within marriage? If the power is not referred, should the present laws be amended to enable State courts to decide custody and maintenance cases according to the same principles and procedures followed by the Family Court?

5. Adoption of children: Should the State laws of adoption permit de facto spouses to adopt a child jointly? If so, in what circumstances? What rights should the father of a child born in a de facto relationship have where someone else applies to adopt his child?

6. Workers’ compensation and fatal accidents: Is it anomalous that a de facto spouse can claim under workers’ compensation legislation for the death of a partner at work, but may have no claim for “common law” damages where the death is caused by the employer’s negligence? Should the right to claim common law damages be extended to de facto spouses, and if so, on what basis?

7. Courts: Should a specialised State family court be established? Would such a court, with procedures and facilities similar to those of the Family Court, overcome the problems associated with the constitutional division of legislative responsibility between the Commonwealth and the States?

CONCLUSION

We emphasise that at this stage we have no preference for any particular approach to the policy questions raised by the reference on de facto relationships. We shall publish a final report, containing recommendations, after interested persons and organisations have had an opportunity to make submissions and, where appropriate, to discuss their views with us. Those who wish to explore the issues in more detail than is possible in this summary are invited to read the Issues Paper itself.

Copies of the Issues Paper may be obtained free of charge from

Mr. Bruce Buchanan,
Secretary,
New South Wales Law Reform Commission, Box 6, G. P.O.,
Sydney, N.S.W. 2001.

Telephone: 238 7213

or by calling at the Commission’s offices at

16th Level,
Goodsell Building,
8-12 Chifley Square,
Sydney.

[Current contact details for the Law Reform Commission]