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Where am I now? Lawlink > Law Reform Commission > Publications > Section 5 - Some Policy Questions
Issues Paper 1 (1981) - De Facto Relationships
Section 5 - Some Policy Questions
5.1 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). As the material in Section 3 shows, 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.
These questions are not answered in this paper, which is intended to raise issues for discussion. They will, of course, be examined in the Commission’s final report. Nonetheless, it is useful at this stage to refer to the major arguments for and against legislative regulation of the rights and duties of de facto spouses. The arguments are important in identifying the policy issues requiring examination and in enabling commentators to judge whether, in their opinion, legal regulation of de facto relationships should be carried further. The arguments set out below are by no means the only ones that can be made. Indeed, we look to submissions to present further arguments and issues for consideration.
I. ARGUMENTS AGAINST LEGISLATIVE REGULATION OF DE FACTO RELATIONSHIPS
5.2 To grant de, facto spouses the same rights and duties as married couples, even in limited areas, undermines the institution of marriage. In response to the release of the Anti-Discrimination Board’s report in 1978 (urging that legislation affecting the parties to a marriage should, in general, be amended to include the parties to a de facto relationship), a representative of the Roman Catholic Church said that
[t]o legalise de facto relationships of any sort and to put them on the same level as marriage would be to erode and undermine marriage. This would lead to the undermining of society generally.”1
Along these lines, it can be argued that the law has an important influence in determining social attitudes and therefore in shaping behaviour. If this is correct, the law, to the extent that it accords de facto spouses rights equivalent to those enjoyed by married couples, neither actively discourages people from entering into de facto relationships nor provides positive incentives to marriage.
5.3 Granting rights to de facto spouses implies that there may be a contest between the legal spouse and the de facto spouse (as has already occurred under the Family Law Act).2 The rights of a legal spouse will usually be adversely affected by the rights conferred on de facto spouses, thus under cutting the protection traditionally accorded to married persons.3 Indeed, legislative regulation of de facto relationships also implies that there may be contests between two or more persons, each claiming to be the de facto spouse of another person. There may be no rational basis for preferring one claim to another.
5.4 To attach rights and duties to persons who have chosen not to marry involves subjecting them to a regime which they may wish to avoid. Given that divorce is not now legally difficult to obtain (whatever the psychological or emotional cost), there must be few people who remain in de facto relationships because they cannot legally marry. Thus, while the few empirical studies which exist provide little information on the motivation of persons entering into or maintaining de facto relationships, it may be reasonable to assume that many do so precisely because they wish to avoid the legal rules that have developed in relation to marriage. One commentator, who approaches the problem from the perspective of a philosophy of “individualism”, puts the matter this way:
“A unique commitment is made by those who marry and not, as they are well aware, by those who refrain from marrying, and no amount of emphasis on the similarities between spouses and cohabitants can obscure the difference, one of the most fundamental in human existence. This is not an argument for the superiority of marriage or even its centrality, but rather for the preservation of the freedom to try alternative forms of relationship, a freedom which is at present being eroded by the increased tendency of the law to impose on the formerly cohabiting couple the status and structure of traditional marriage.”4
5.5 It has been argued that to carry further the legal regulation of de facto relationships reinforces the notion, unacceptable to many, that women are weaker than men and are still in special need of economic protection. On this view, the law should not further encourage the assumption that the man is the head of the household and the woman obliged to provide domestic services and child care. This assumption is unsatisfactory when applied to married persons and should not be extended to unmarried couples.5
5.6 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 homosexual unions, brother and sister households and extended families.6 Any extension of the law to such relationships would further undermine marriage and would be unacceptable to community opinion.
5.7 If the law is to regulate de facto relationships, it will be necessary to draft an appropriate legislative definition. It is generally very easy to determine that a person is married; there are clearly defined procedures for acquiring that status. By contrast it may not be easy to identify whether a couple is living in a de facto relationship. Any definition must leave considerable discretion to the court (or other decision-maker), since the relevant criteria cannot be stated with precision. This in turn may create considerable uncertainty, a matter of particular concern if the rights of third parties are involved. Moreover a decision as to whether parties have lived together in a de facto relationship may require a distasteful investigation of the intimate details of their private lives.
5.8 The regulation of de facto relationships may require far-reaching changes to many areas of law. The law of property, maintenance, torts (the right to sue for injury or death), succession, evidence, social security and taxation (leaving aside questions of Commonwealth-State legislative power) will all be affected. Some changes might defeat expectations or create uncertainty.
5.9 Further legal regulation of de facto relationships implies that a larger class of people will have claims, directly or indirectly, on government or the community generally. For example, if a taxation rebate is granted in respect of the taxpayer’s dependent de facto spouse in the same way as is allowed for a dependent husband or wife, the Commonwealth’s income tax receipts will drop. Similarly, extended entitlement to compensation for death or injury (fatal accidents, workers’ compensation, no-fault accident compensation, criminal injuries compensation), or to claim superannuation payments on the death of a contributor, will increase the cost of compensation and superannuation schemes to the community.
II. ARGUMENTS FOR LEGISLATIVE REGULATION OF DE FACTO RELATIONSHIPS
5.10 As the material in Section 2 shows, whatever difficulties there may be in ascertaining the precise number or nature of de facto relationships, the fact is that they are very common. It is true that the expectations, intentions and behaviour of de facto spouses vary considerably, as do those of married couples. But, except for the formal marriage tie, there is no necessary legal difference between the nature and quality of de facto relationships and the nature and quality of marriage relationships. Each may involve a high degree of stability and commitment from the parties, substantial economic and emotional interdependence, the provision of care and support for children and the development of relationships, as a family unit, with the outside community.7 Whether or not the failure of de facto spouses to go through a marriage ceremony is to be regarded as contrary to social norms or moral rules and convention, the law cannot ignore their relationship except at the price of causing injustice. On termination of that relationship, either by separation or death, it is highly probable that certain questions will have to be decided: for example, financial adjustments may have to be made and problems of custody settled (if there are children). It is also likely that, in some circumstances, the rights of third parties will be affected (as where the family breadwinner is killed in an accident). The only question is whether the courts are forced to struggle with these problems unaided by the legislature, or whether an attempt is made to establish statutory rules and procedures that give effect to reasonable expectations and avoid clear injustice. The fact that de facto relationships have long been expressly acknowledged by the law for certain purposes demonstrates the futility of the argument that they should simply be ignored.
5.11 De facto spouses have the same need for adjustment of their rights and duties, both as between themselves and as against third parties, as do married couples in substantially identical circumstances. If the “protective, adjustive or supportive” function of family law is withheld from de facto spouses, serious injustice will be caused.8 This has been increasingly recognised by judges who have been confronted by situations for which the law does not make adequate provision. It is unacceptable that a de facto spouse who has lived in a home with her partner for 20 years should have no claim to the home when the partner dies intestate.9 It is equally unacceptable that the law makes no provision for a speedy and effective relief to a de facto spouse threatened by domestic violence.10 The argument that the parties should have married provides no answer to urgent problems and no remedy for injustice. The Tasmanian Law Reform Commission puts the matter this way:
“In the practical Organisation of affairs many of the same obligations and restrictions apply to the de facto relationship as apply to marriage. The same questions of dependence and maintenance exist and the law can be regarded as failing if it refuses to provide the parties with adequate remedies to protect themselves.”11
5.12 The problem of defining de facto relationships is no more difficult than many other definitional questions facing legislatures and courts. It is inevitable that de facto relationships will be regulated for some legal purposes, if only to ensure that persons living together outside marriage are not treated more favourably than married couples similarly situated. This is the rationale for the “cohabitation rule”, which has long been applied to social security claimants to disqualify them from pensions and benefits.12 The Administrative Appeals Tribunal and other bodies are regularly required to determine whether a couple is living together as man and wife on a permanent and bona fide domestic basis”. There is therefore nothing especially unusual or difficult about employing similar criteria to determine eligibility for benefits the law might confer on a de facto spouse.
5.13 It is arguable that “people who encourage financial dependence by instituting a de facto relationship must also undertake appropriate obligations and responsibilities”.13 Unless the rights and duties of de facto spouses are regulated by legislation they provide opportunities for exploitation. Indeed the current law, in some situations, provides a positive disincentive to marriage for persons who wish to gain all the advantages of cohabitation without accepting the responsibilities associated with marriage.
5.14 The alternative to further legal regulation of the rights and duties of de facto spouses may be that the burden of support will fall on the social security system rather than on family members.14 For example, permitting a de facto spouse to claim a share of the estate of the deceased partner may not only give effect to reasonable expectations, but prevent the spouse relying on publicly-funded pensions or benefits.
5.15 Recent literature has emphasised the changing patterns of marital and family relationships in Australia and elsewhere, especially the breakdown of the stereotyped conception of social roles in marriage and related assumptions of male dominance and female economic and psychological dependence.15 To some extent Australian family law, through the Family Law Act 1975 (Cth), has responded to the changes in the nature of marital relationships. This is seen, for example, in the abolition of the rules relating to the wife’s dependent domicile (s.4(3)); the provision for each spouse to have guardianship and joint custody of the children of the marriage (s.61); the requirement that each spouse, to the extent of his or her resources, be responsible for the children’s maintenance (s.73); and the abolition of the husband’s duty to support the wife (under s.72 maintenance between spouses is payable only where one spouse has the capacity to pay, and the other spouse is unable adequately to support himself or herself. Further legal regulation of de facto relationships does not imply any departure from this approach. In particular, providing the same protection to de facto spouses as is currently available to married persons need not reinforce any stereotyped notions of female dependence. For example, legal recognition of the significance of indirect contributions to the acquisition of property cannot be said to proceed from any assumption of female dependence. It is possible for the rights and duties of de facto spouses to reflect the same changes in attitudes that have influenced the law affecting married persons.
5.16 Since one of the major reasons for legislative regulation of de facto relationships is the similarity between the functions they perform and those performed by marriages, there is no compelling reason why similar regulation will be required for other domestic relationships, such as siblings who share a household or homosexual partnerships. It may be that, depending on the circumstances, legislation will regulate the consequences of other relationships for certain purposes. For example, if the criterion to be satisfied by applicants for testator’s family maintenance is dependence on the deceased, members of the deceased’s household other than his or her de facto spouse may be eligible to apply. But this will be-’because of the eligibility criterion selected as appropriate, not simply because the legislation allows de facto spouses to make claims.
5.17 Some de facto spouses may consciously elect to avoid incurring the rights and duties associated with marriage but this is clearly not always the case. The likelihood is that very few people entering de facto relationships give careful consideration to the legal consequences of their actions. Indeed, some may assume that they have the same rights and duties as married couples. In any event, it is possible to accommodate those who do not wish to be bound by conventional rules. They could be permitted, for example, to enter into agreements governing the rights and duties of the parties during the relationship and after its termination.
III. POSSIBLE APPROACHES
5.18 If there are sound practical reasons justifying legal regulation of de facto relationships, the question arises as to the form and extent of that regulation. It does not follow, for example, that because de facto relationships should be regulated by legislation for some purposes they should be treated as the equivalent of marriages for all purposes. There is a range of possible approaches, assuming that some regulation of de facto relationships is desirable. At one extreme, legislation could provide that the parties to a de facto relationship (whatever definition is employed to identify such a relationship) shall be treated for all legal purposes as though they were married persons. At the other, modest amendments could be made to specific legislation, such as workers’ compensation acts or testator’s family maintenance provisions, to overcome what might otherwise be seen as obvious anomalies and injustices. The following material briefly refers to several approaches that might be taken. This is not necessarily an exhaustive list, but relies on legislative options that have been considered or implemented in Australia.
A. Equating Marriages and De Facto Relationships for All Purposes
5.19 The most sweeping approach would be to equate the legal rights and duties of de facto spouses (as between themselves and in relation to third parties) with those of married couples. In theory this could be done simply by redefining “marriage” to include not only the relationship between persons who have gone through the appropriate ceremony, but also that between two persons who have lived together as de facto spouses (perhaps for a specified period). In Australia because of the constitutional division of powers between the Commonwealth and the States, it may be impossible to redefine marriage in this way, even assuming such a measure to be desirable. The reason is that the Commonwealth almost certainly does not have constitutional power to redefine marriage to include de facto relationships.16 The States do not have the power to require the Commonwealth to accept de facto relationships for the purposes of federal law, although presumably this result could be reached by joint action.
5.20 An alternative to redefining marriage is for the State to pass a series of measures designed to provide the same rights and duties for parties to a de facto relationship as apply to married couples. The New South Wales Anti-Discrimination Board, for example, 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”.17 The Board’s report was confined to a consideration of State legislation affecting the parties to a marriage. Amendments to State legislation would not of themselves equate the legal position of married persons and de facto spouses, since in Australia much of the law relating to married persons is contained in Commonwealth legislation, notably the Family Law Act 1975. However, the State could, if it wished, enact legislation equivalent to federal legislation governing married persons. It could, for example, pass laws dealing with the property or maintenance rights of de facto spouses in substantially identical terms to the property and maintenance provisions of the Family Law Act. Even this would not precisely equate the position of married persons and de facto spouses, since matrimonial disputes are usually heard by the Family Court which is a federal court.18 The States do not have power without the co-operation of the Commonwealth, to confer jurisdiction on the Family Court to hear matters concerning de facto spouses, although of course, they may create their own Family Court. Thus complete equivalence between the legal position of married couples and de facto spouses would require joint Commonwealth-State action.
B. Granting De Facto Spouses Rights on Proof of Dependence
5.21 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.
“Within marriage, society recognises that a change of status occurs by reason of the marriage and that this in itself confers rights and obligations on the par-ties. We would not recommend that the mere fact that parties have lived together as though they were man and wife for even a long period should itself alone confer legal rights or impose legal obligations; nor do we recommend that any kind of de facto relationship should ever effect any change of status such as occurs on marriage. Basically we feel that rights and obligations in this context should only be conferred or imposed on proof of dependency, and that this should be for the purpose of relieving hardship and injustice only.”19
The Commission concluded that, in general, it should be open to a de facto spouse to prove dependence only where the parties had
“cohabited for a continuous period of 12 months immediately prior to the cessation of the dependency by death or the happening of the event on which the claim was based”.20
5.22 The period of 12 months was chosen because it is the period specified in the Maintenance Act 1967 (Tas.), which permits a claim for maintenance by a deserted de facto wife. The Commission further recommended that, provided the court is satisfied that dependence exists, it should be able to allow a claim, in proof of “special circumstances” even though the parties have not cohabited continuously for the 12 month period. The Commission suggested amendments, in line with these principles, to legislation dealing with workers’ compensation, fatal accidents, no-fault motor accident compensation, testator’s family maintenance and estate duty assessment. Amendments to the Maintenance Act were also suggested, in order to equate the entitlements of men and women living in de facto relationships. Curiously enough, however, the Commission did not consider the application of the general principles it enunciated to property disputes between de facto spouses, although the principles would appear to be equally appropriate to such cases. The Commission did not attempt to define either “dependency” or the “special circumstances” that would justify a claim before expiration of the qualifying period of cohabitation. These matters were to be determined by the court according to the circumstances of each case.
5.23 The Commission’s approach maintains a clear distinction between the legal effect of marriage and that of a de facto relationship. The former may confer entitlements by virtue of the status of the partners. De facto spouses, by contrast, receive entitlements only on proof of dependence and, save in special circumstances, proof of cohabitation for at least 12 months. Thus the widow of a man killed in a motor accident may be entitled to payments under the no-fault compensation scheme, whether or not she was living with 2 her husband at his death and whether or not she can show actual dependence on that date.21 The de facto spouse of the victim would need to demonstrate:
(i) dependence on the deceased at the date of his death; and
(ii) cohabitation for at least twelve months (unless there are special circumstances).
5.24 On one view, the introduction of a dependency test might be seen as a useful means of avoiding hardship and injustice. The Tasmanian Law Reform Commission seems to have had in mind financial dependence, or reliance by one party on the income of the other for support, as the legislative test to be applied in determining eligibility to claim benefits.22 Such a test would be very likely to overcome some of the apparent harshness of the existing law, as identified for example in recent judicial decisions. The ascertainment of dependence (and “special circumstances”, in the case of short-term relationships) would be left by the Commission to the courts. This would not necessarily impose an unduly difficult burden on judges, who regularly face similar decisions in other contexts.
5.25 The Tasmanian approach would not, however, permit a non-financially dependent de facto spouse to claim benefits, even in circumstances where these are available to a married person without proof of dependence. Some would argue, moreover, that a test of financial dependence takes insufficient account of the interdependence of parties to a relationship, regardless of their financial arrangements. Relationships may involve not merely economic, but emotional interdependence, and mutual support concerning such matters as the rearing of children, management of the household and the discharge of family and social responsibilities.23 The interdependence of the parties to a relationship may therefore be an important consideration in formulating an approach by the law to the regulation of the rights and duties of de facto spouses.
C. Limited Equation of Marriages and (Certain) De Facto Relationships
5.26 The strategy of equating certain de facto relationships with marriages, for specified purposes, is employed by the South Australian Family Relationships Act 1975, discussed in Section 3.24 The Act allows a person who answers the statutory description of a “putative spouse” to apply to the Supreme Court of South Australia for a declaration of his or her status. Once the declaration is made, the putative spouse has the same entitlements as a married person in a number of specified areas, each of which is governed by a separate Act. The legislation equates the position of putative spouses and married persons only in relation to claims consequential on the death of a partner. Thus a putative spouse and a married person, in general, have the same entitlements under legislation concerned with such matters as intestate succession, testator’s family maintenance, compensation for fatal accidents and eligibility under government superannuation schemes. No provision is made for putative spouses to claim maintenance or a settlement of property from a former partner during that partner’s lifetime.
5.27 The definition of “putative spouse” requires a claimant to prove that the parties were cohabiting on the relevant date (usually the death of the partner) and that either
(i) the cohabitation had lasted for at least five years before that date, or
(ii) the parties had had sexual relations resulting in the birth of a child.25
This definition does not employ the concept of dependence and therefore differs from the approach taken by the Tasmanian Law Reform Commission.26 In one respect the South Australian legislation is more generous to de facto spouses, since it permits a non-dependent partner in a long-standing relationship (or one in which a child has been born) to attain the status of a “putative spouse”. In another way the legislation is less generous, since a dependent spouse, whose relationship has continued for less than five years and not produced a child, is excluded from its benefits.
5.28 There are clearly difficulties with the South Australian legislation. The drafting is open to criticism. For example, a threshold requirement of five years cohabitation for a childless couple may be thought too harsh, particularly where dependence can be proved. The provisions governing the resolution of competing claims between a putative spouse and a lawful spouse are not easy to reconcile.27 The legislation in its current form in general does not provide relief to a de facto spouse whose relationship ended shortly before the death of his or her partner,28 even though the relationship may have continued for many years and involved the birth of children. Nonetheless, it is not clear that the apparent objectives of the legislation can be dismissed as readily as might be suggested by recent judicial criticism.29
D. Legislative Regulation of De Facto Relationships in Specific Areas
5.29 Each of the approaches discussed so far formulates a definition of a de facto relationship that is to be regarded as the equivalent of marriage, either for all purposes (New South Wales Anti-Discrimination Board) or for a range of purposes (Tasmanian Law Reform Commission; South Australian Family Relationships Act). The definitions vary considerably, reflecting important policy differences embodied in each approach. It can be argued that, even if legislative reform is desirable, no attempt should be made to adopt a uniform definition of a de facto relationship, designed to confer on a de facto spouse the same entitlements as a lawful spouse in a variety of fields. Rather, the question of reform should be approached by examining each area of the law in which legislative regulation of de facto relationships is an issue. A judgment should then be made as to whether such relationships should be regulated further and, if so, what form the regulation should take. Except in South Australia (and Tasmania, if the Law Reform Commission’s views are accepted) Australian law has tended to develop in this way. De facto relationships have been regulated or acknowledged by legislation in limited areas, but not on any systematic basis.
5.30 If this approach is to be followed, albeit more systematically, it is necessary to examine separately each important area of law in which regulation of de facto relationships is an issue. A decision will be required as to the nature of the change, if any, needed in that area. If further legislative regulation of de facto relationships is warranted, a definition will have to be formulated, although it may not be identical to the definition adopted for other purposes.
IV. SOME QUESTIONS
5.31 In order to determine whether the law should regulate further the rights and duties of de facto spouses, it is necessary to pose some general questions which follow from the analysis earlier in this Section. In addition it may be important to direct attention to specific policy questions raised by the areas of law discussed earlier in this paper. In this Part we ask questions which are intended to provide guidance to persons and organisations preparing submissions. The nature of the questions asked does not imply that we have formed views as to whether reforms are required, either generally or in any particular area. Nor do the questions imply a preference for any of the approaches to reform identified in Part III of this Section.
A. General Issues
5.32 (i) Are the arguments against and in favour of legal regulation of de facto relationships stated fairly in Parts I and II of this Section? If not, in what respect are they stated unfairly?
(ii) Are there any other arguments which can or should be put on either side of the case?
(iii) Should the Commission carry out any empirical inquiries before reaching a conclusion on the policy questions? If so what inquiries should be made? Why are they needed?
(iv) Is there a case for further legislative regulation of the incidents of de facto relationships than that now accorded by the law in force in New South Wales?
(v) If so, what approach should be taken by the law to the regulation of de facto relationships? Do the four approaches identified in Part III of this Section exhaust the possibilities that should be considered by the Commission? What other ap-proaches, if any, should be considered?
(vi) Are there any special problems in this area for groups such as Aboriginal and ethnic communities?30
B. Specific Legal Issues
1. The Relationship Between the Partners
(a) Property Claims
5.33 The existing law in New South Wales and other Australian jurisdictions requires property disputes between (former) de facto spouses to be resolved according to orthodox principles of property law.
(i) Should legislation in this State specify new principles and procedures for the resolution of such disputes?
(ii) If legislation is desirable, should it take the form of rules modifying the existing law (for example, a presumption of joint ownership of the “matrimonial home”), or should State courts be given a discretion, similar to that conferred on the Family Court by the Family Law Act 1975 (Cth), to order one party to settle property on the other?31 What should be the status of an agreement in relation to property made between de facto spouses at the outset or in the course of their relationship? Should the court be required to approve an agreement, made after a relationship has ended, which provides for a financial adjustment in substitution for any rights arising under legislation?32
(iii) If State courts should have a discretion to order a settlement of property, what criteria should the courts take into account in exercising their discretion? Are the criteria specified in the Family Law Act 1975 (Cth) appropriate to proceedings between de facto spouses? In particular, is it appropriate that the State courts take into account not only contributions to the acquisition or maintenance of the assets in dispute, but the future needs of the parties? Does it matter whether or not the needs can be attributed directly to the relationship? (Compare, for example, the needs of children of the relationship with needs generated by the ill-health of one of the parties, the ill-health having no necessary connection with the relationship.)
(iv) How are the problems of competing claims to be resolved? What should be the position, for example, when a State court is asked to re-arrange the property rights of de facto spouses at the same time as the Family Court is considering an application from the lawful spouse covering the same property?
(v) Should there be a provision, analogous, to s.44(3) of the Family Law Act 1975 (Cth),33 which requires claims with respect to property to be brought within a specified time of the termination of the relationship? If so, how should this limitation be framed?
(b) Maintenance
5.34 Except in Tasmania, no Australian State or Territory permits a de facto spouse to claim maintenance against his or her (former) partner.
(i) Should legislation enable claims for maintenance to be pursued between de facto spouses? What principles, if any, justify requiring a partner in a de facto relationship to support the other? Is it inconsistent to allow a de facto spouse to claim under testator’s family maintenance legislation, where that spouse has been dependent on the deceased, yet not permit a claim for maintenance by the dependent spouse while both parties are alive?34
(ii) If maintenance claims are to be permitted, what criteria should the court apply? Should the principles be, as nearly as possible, the same as those specified in the Family Law Act 1975 (Cth)? Is it appropriate for the court to take into account the future needs of the claimant? Does it matter whether those needs can be attributed directly to the relationship? Should needs perhaps attributable to the vicissitudes of life, such as poor health, unemployment and old age, be the responsibility of a de facto partner, or of the social security system subject to the usual eligibility criteria?
(iii) What should be the legal effect of agreements between the parties, whether made during the relationship or following its termination, concerning maintenance?
(iv) What should be the connection, if any, between maintenance claims and property claims made by a de facto spouse?
(c) Domestic Violence
5.35 (i) Should special powers be conferred on State courts to restrain acts of violence within the household of de facto spouses? If so, which court or courts should exercise the powers?
(ii) To what extent, if at all, should the court be able to exclude one de facto spouse from the home? Should the exercise of such a power depend on whether the assaulting spouse has title to the home?
(iii) Should the court have power to order that the assaulted de facto spouse remain in the home, even where that spouse has no title to the home? Should such a power be confined to the grant of a licence to occupy the home for a specified period, or should it extend to preventing the assaulting de facto spouse disposing of his or her interest in the home? Can or should this be done independently of reform of the property rights of de facto spouses?35
(iv) Should an injunction issued by a court to restrain threatened domestic violence automatically attract a power of arrest by police for breach, even in cases where the injunction is issued ex parts (as recommended by the New South Wales Task Force on Domestic Violence)?
(v) Should any changes be made to the pro-cedure under which a court may make an orderto “keep the peace” under the Crimes Act, 1900 (N.S.W.), s.547?
(d) Inter-spousal Immunity
COMPELLABILITY
5.36
(i) The present law is that a husband and wife generally may not be compelled against their will to give evidence in criminal proceedings in which the spouse is the accused person.36 Suggestions have been made that the court should have a discretion to require a married person to give evidence against his or her spouse where the interests of justice outweigh the importance of respecting the marriage bond.37 Suggestions have also been made that, whatever the form of the general rule, a married person should be compellable to give evidence against his or her spouse where the latter is charged with a domestic assault.
(i) Should the general rule as to non-compellability of spouses (whatever its final form) apply to de facto relationships? If so, should there be an exception for cases in which one de facto spouse is charged with assault on the other?
(ii) A related question is whether the existing provision in New South Wales law, which makes a husband and wife each competent but not but not compellable to disclose communications made between each other during the marriage,38 should be extended to de facto spouses. If the rationale for the privilege is the desirability of “promoting the utmost candour and confidence in rationale matrimonial relations”,39 does the apply equally to de facto relationships?
PRIVACY
5.37 Further questions arise concerning the general question of privacy in matrimonial relationships.40
(i) Should the courts have power to grant injunctions to restrain a person publicising secrets relating to the personal life, personal affairs or conduct of the parties to a de facto relationship?
(ii) Should legal proceedings involving de facto spouses be subject to the same restrictions on publicity as those involving married couples? What form should those restrictions take?
2. Parents and Children
(a) Custody and Guardianship
5.38 In most States of Australia, as seen in Section 3, the status of children legislation embodies the principle that the legal relationship between a child and his parents should not depend on whether Se parents have ever been married to each other. The legislation is not expressly concerned with the custody and guardianship of ex-nuptial children, although it has an important indirect impact on these matters.41 In practice, even in States with status of children legislation, there are still important differences between the handling of disputes concerning the custody and guardianship of ex-nuptial children and the handling of disputes relating to the children of a marriage.42
5.39 One approach to this problem is for the States to refer legislative power to the Commonwealth to make laws with respect to the custody and guardianship of ex-nuptial children (including children of a de facto relationship). Our terms Of reference require us to take into account the “proposed reference of family law powers to the Commonwealth” which has been discussed in Section 1. If the reference of power does proceed, presumably the Family Law Act 1975 (Cth) will be amended so that all cases involving the custody, guardianship and maintenance of children, whether legitimate or ex-nuptial, will be determined according to the principles currently applicable to disputes in relation to the children of a marriage. Whether any residual issues will remain for determination under State law will depend on the scope and wording of the amendments to the Family Law Act, following the reference of power.
5.40 If the reference of power does not proceed, consideration should be given to rationalising within a single statute the complex State law on custody and guardianship of children (as well as maintenance). Such a statute would not be concerned solely with the children of de facto relationships but would extend to them. The questions for consideration include the following:
(i) Given acceptance of the general principle that the welfare of the child is the paramount consideration in custody proceedings, should the provisions in State legislation relating to parental fault or misconduct be retained?43
Should the criteria to be applied by courts under State law be the same as those specified in the Family Law Act?
(ii) Should the legislation include provisions similar to those in the Family Law Act allowing separate representation of the child and empowering the court to require the parties to attend conferences with a court counsellor or welfare officer?
(iii) Should the legislation follow the approach of the Family Law Act and make each of the parents of an ex-nuptial child a guardian entitled, subject to any contrary court order, to joint custody? Should such a provision attempt to exclude “unmeritorious” fathers, such as a rapist or a “casual seducer”? (The Royal Commission on Human Relationships suggested that parents living together at the time of birth of the child should be regarded as joint guardians and custodians.44)
(iv) At a broader level, should all custody cases arising under State law be heard by a single State court? If so, which court? Should a specialist State “family” court be established, with procedures and counselling and conciliation services similar to those available in the Family Court?
(b) Maintenance of Children
5.41 Despite the status of children legislation, there are still significant differences between the law governing maintenance claims by or on behalf of the children of a marriage and that governing claims by or on behalf of ex-nuptial children.45 As with custody and guardianship, one approach is for the States to refer legislative power to the Commonwealth to deal with the maintenance of children. The proposed reference of powers covers this topic, although it is not clear whether the reference would permit the Commonwealth to legislate to give, say, the Family Court power to order a parent to transfer property by way of security or pay a lump sum to a child. If the reference of powers proceeds, the Family Law Act will presumably be amended to equate, so far as the reference permits, the entitlement of an ex-nuptial child with that of a legitimate child.
5.42 If the reference of powers does not proceed, questions arise that are similar to those concerning custody and guardianship. In addition to the general question of whether a specialist State family court should be established, specific issues include the following:
(i) Should courts hearing maintenance claims by or on behalf of ex-nuptial children (including children of de facto spouses) have the same power to adjust financial relationships as the Family Court? In particular, should the courts be empowered to order parents to transfer property by way of security for the benefit of children and to make lump sum payments? Should the court, in adjusting the financial relationships between de facto spouses, be able to take into account the parties’ financial obligations to their children?
(ii) Should the criteria for the award and continuation of maintenance payments (for example, where a child has attained the age of 18) be the same as those specified under the Family Law Act?
(c) Adoption of Children
5.43 (i) Should the State law of adoption (which would not be affected by the proposed reference of powers), permit de facto spouses to adopt a child jointly? If so, shown this be permitted generally, or only where there are special circumstances (as when one partner is the father or mother of the child and the other partner accepts the child within the household)?
(ii) Should greater protection be accorded to the father of a child born within a de facto relationship, where an application is made by another person for the adoption of that child?46
3. Termination of Relationship by Death
(a) Workers’ Compensation and Fatal Accidents
5.44 In New South Wales a de facto spouse may qualify as the “dependent” of a worker who has been killed at work and therefore may claim workers’ compensation payments in respect of the worker’s death.47 However, New South Wales (unlike South Australia and the Territories) does not permit a surviving de facto spouse whose partner has been killed in an accident, whether at work or elsewhere by the negligence of a third party, to seek damages for the loss under the Compensation to Relatives Act 1897 (N.S.W.).
(i) Is it anomalous that a de facto spouse may claim under workers’ compensation legislation for the death of a partner at work, but may have no claim for common law damages (as distinct from workers’ compensation payments) where the death is caused by the employer’s negligence?
(ii) If the right to claim damages under the Compensation to Relatives Act 1897 (N.S.W.) is to be extended to de facto spouses, should such a spouse be required to prove both dependence and cohabitation at the time of death? Should a “separated de facto spouse” be entitled to claim for any loss? Should the legislation base eligibility on financial dependence, coupled with proof of sometime membership of the deceased’s household (in which case persons other than a de facto spouse may be eligible to claim damages)?48
(b) Testator’s Family Maintenance and Intestacy
5.45 This Commission has proposed substantial changes to the law of testator’s family maintenance in New South Wales.49 The proposals, among other things, would enable a surviving de facto spouse (subject to proof of certain specified matters) to claim an order from the court granting a share of his or her partner’s estate. Such an order may be claimed even where the partner dies without having made a will (intestate). New South Wales law, like that of all Australian States except South Australia, makes no provision for a de facto spouse to succeed automatically to a share of his or her partner’s estate where the partner dies intestate.
(i) Do the proposals of this Commission provide adequate protection for a surviving de facto spouse? Should de facto spouses be within the class of statutory beneficiaries entitled to succeed automatically on an intestacy?50
(ii) Several bodies have drawn attention to the need for State testator’s family maintenance legislation to accord with the principles of financial adjustment established by the Family Law Act.51 If this were to be done, the criteria for the award of testator’s family maintenance would need to be altered, with less emphasis on the conduct or character of a claimant and more emphasis on his or her needs and contributions to the estate of the deceased. Should changes of this kind be considered in the context of reform of the law concerning de facto relationships, or should they be considered only as part of a broader reform of the law governing property distributions and maintenance after death?
C. Jurisdictional Issues
5.46 The point has been made in this paper that one of the principal problems facing policy makers in this area is the constitutional division of legislative responsibility for family law. One approach to this problem is for the States to refer additional family law powers to the Commonwealth. As previously noted, we are required to take into account the “proposed reference of family law powers” discussed in Section 1. Even if the reference proceeds, however, the problem remains that some areas of law relevant to de facto relationships will be within Commonwealth power and some will not. The problem is not, of course, confined to the law governing de facto relationships, but it may be appropriate in the present context to ask how the constitutional difficulties might be overcome.
(i) Is there any merit in establishing a specialist State “family” court, as suggested earlier in this Part? Would such a court, with procedures and services similar to those in the Family Court of Australia, be able to overcome the major problems created by the constitutional division of legislative responsibility?
(ii) Should the State explore the possibility of a “dual court system” under which, for example, a judge of the Family Court would be appointed in his or her personal capacity as a judge of the relevant State court (whether or not that court is a specialist family court)?” Given that this proposal would allow Family Court judges to hear matters arising under either State or Commonwealth law, would it create, in effect a unified approach to family law? What difficulties would such a proposal present? Is there any other approach which is likely to overcome the constitutional difficulties and therefore worthy of consideration?
FOOTNOTES
1. Sydney Morning Herald, 25 August 197 8 (Bishop Clancy). On 2 October 197 8, shortly before the State elections, the Premier (Mr. N. K. Wran, Q. C., M.P.), announced that the Government did not intend to implement the Board’s proposal: Sydney Morning Herald, 3 October 1978.
2. See paras.3.15-3.16 above.
3. S.M. Cretney, “The Law Relating to Unmarried Partners from the Perspective of a Law Reform Agency” in J.M. Eekelaar and S.N. Katz, Marriage and Cohabitation in Contemporary Societies (1980), 365-366.
4. R.L. Deech, “The Case Against Legal Recognition of Cohabitation”(1980) 29 Int. & C.L.Q. 480,484 (also printed in J.M. Eekelaar and S.N. Katz, n.3 above, 300, 302.
5. Ibid., 486 (also at 304).
6. Ibid., 485 (also at 303).
7. Cf. E. Evatt, R.S. Watson and D. McKenzie, “The Legal and Social Aspects of Cohabitation and The Reconstituted Family as a Social Problem” in J.M. Eekelaar and S.N. Katz, n.3 above, 402.
8. Cf. J.M. Eekelaar, Family Law and Social Policy (1978), 54.
9. Blanchfield v. Public Trustee, 1 April 1981, Wootten J.
10. See paras.4.18-4.22 above.
11. Tasmanian Law Reform Commission, Report on Obligations Arising from De Facto Relationships (No.36, 1977), 3.
12. See paras.3.6-3.8 above.
13. Tasmanian Law Reform Commission, n.11 above, 3.
14. Cf. D. MacDougall, “Policy and Social Factors Affecting the Legal Recognition of Cohabitation without Formal Marriage” in J.M. Eekelaar and S.N. Katz, n.3 above, 316.
15. See, e.g., collected papers in D. Davis, et al (eds.), Living Together.- Family Pattens and Lifestyles (1980); Royal Commission on Human Relationships, Final Report(1977), vol.4; M. Glendon, “Power and Authority in the Family: New Legal Patterns as Reflections of Changing Ideologies” (1975) 23 Am. J. of Comp. L. 1.
16. There may be an argument that the Commonwealth’s power to make laws with respect to.. “marriage” (Constitution, s.51 (xxi)) extends to the recognition of de facto relationships on the basis that the historical conception of “marriage”, in the common law, included certain unregistered marriage-like relationships. Cf. H.A. Finlay “Defining the Informal Marriage” (1980) 3 Uni. N.S.W.L.J. 279, 302. This argument is unlikely to be accepted by the High Court.
17. See paras.3.34-3.38 above.
18. As to the jurisdiction of the Family Court, see Family Law Act 1975 (Cth), s.31. The amendments introduced in October 1981, if passed, will extend the Family Court’s jurisdiction in the Territories to deal with the “rights and status” of an ex-nuptial child, including the child’s relationship to his parents: Family Law Amendment Bill 1981, cl.11.
19. Tasmanian Law Reform Commission, n. 11 above, 6.
20. Ibid., 7.
21. Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.), First Schedule, ss.2(1), 5(1).
22. Tasmanian Law Reform Commission, n. 11 above, 7, 8, 10.
23. To some extent the Family Law Act 1975 (Cth) recognises the interdependency of married couples. Thus, s.75(2)(j) directs the court to take into account the “extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party”. Section 79(4)(b) recognises the “contribution made in the capacity of homemaker or parent” in the context of the alteration of property interests. Section 79(4) is to be amended to make clearer the policy of recognition of non-financial contributions to “the welfare of the family” in the re-allocation of property interests: Family Law Amendment Bill 1981, cl.27(b).
24. See paras.3.51-3.53.
25. For the precise terms of the legislation, see para. 3.52 above.
26. See para.5.21 above. This does not mean that dependence is necessarily irrelevant to the ultimate entitlement of a putative spouse. The South Australian scheme merely allows a putative spouse to claim on the same basis as a lawful spouse in specific areas. If the specific legislation allows the court to take into account the means of the claimant (whether married or not), the question of dependence may be important. Cf. Inheritance (Family Provision) Act 1972-1975 (S.A.), s.7(3).
27. When there is both a lawful and a putative spouse, the spouse’s share on an intestacy is divided equally between them: Administration and Probate Act 1919-1975 (S.A.), s.72h. But the Superannuation Act 1974-1979 (S.A.), s.121, directs the tribunal to pay death benefits to a putative spouse of three years standing to the exclusion of the lawful spouse. There may be an unstated policy of recognising dependence in this provision.
28. Relief may be provided, depending on the terms of the substantive legislation. For example, the Inheritance (Family Provision) Act 1975 (S.A.) defines “spouse” to include a person adjudged under the Family Relationships Act to have been a putative spouse either at the date of his death or at some earlier date. In effect the legislation places a divorced spouse and a separated de facto spouse in the same position.
29. See the comments of King C.J. in Lesiw v. Commissioner of Succession Duties (1979) 20 S.A.S.R. 481, 485, cited in para.3.53, above.
30. The Australian Law Reform Commission noted the special provisions of the Northern Territory Administration and Probate Act 1979 which authorise a court to distribute the estate of a deceased Aboriginal dying intestate according to the kinship rules of customary law (ss.67A, 71-71F). Aboriginal Customary Law - Recognition? (Discussion Paper No. 17, 1980), 82-83. See also the discussion in D. Bell and P. Ditton, Law. The Old and the New (1980), 90-98. Significant questions include: who should be required to consent to the adoption of ex-nuptial children; who may adopt; the range of relatives entitled to claim on the estate of a deceased person?
31. Cf. R-J. Bailey, “Legal Recognition of De Facto Relationships” (1978) 52 A.L.J. 174, 185.
32. Cf. Family Law Act 1975 (Cth), s.87 (approval of maintenance agreements).
33. The Family Law Act 1975 (Cth), s.44(3) provides that, where a decree of dissolution has been made, claims by a spouse for maintenance or in relation to property cannot be instituted after the expiration of 12 months from the date of the decree, except by leave of the court. The 1981 amendments, if passed, extend this period to 12 months from the date on which the decree nisi becomes absolute.
34. Cf. J.M. Eekelaar, n.8 above, 58.
35. Cf. Domestic Violence and Matrimonial Proceedings Act 1976 (U.K.), s. 1; Davis v. Johnson [1979] A.C. 264; H.A. Finlay, “The Battered Mistress and the Violent Paramour” (1978) 52 A.L.J. 613.
36. Crimes Act 1900 (N.S.W.), s.407.
37. See para.4.23 above.
38. Evidence Act 1898 (N.S.W.), s.11(1).
39. Cross on Evidence (2nd Aust. ed., 1979), 272-273.
40. See paras.4.24-4.27.
41. See Youngman v. Lawson 20 May 1981, para.4.34 above.
42. See para.4.36 above.
43. See, e.g., Infants Custody and Settlements Act 1899 (N.S.W.), ss.6, 8, 10. See R. Chisholm, “Children and the Law” in A. Bums and J. Goodnow, Children and Families in Australia (1979), 193-196.
44. Royal Commission on Human Relationships, n.15 above, vol.4, 69. Cf. U.K. Law Commission, Working Paper on Illegitimacy (1979), 23-29, arguing that all parents should be joint guardians of their children, despite occasional absurd consequences.
45. See para.4.43 above.
46. See para.4.46 above.
47. Workers’ Compensation Act 1926 (N.S.W.), s.6(1) (definition of dependants). See para.3.26 above.
48. This was recommended by the Western Australian Law Reform Commission, Report on Fatal Accidents (1978), 18; This was endorsed by the Tasmanian Law Reform Commission, Working Paper on Compensation for Personal Injuries Arising out of Tort (1980), 23.
49. See paras.3.27-3.28 above.
50. The Western Australian Law Reform Commission has suggested that the class of statutory beneficiaries should not be enlarged unduly, having regard to the availability of testator’s family maintenance applications and to the fact that the majority of intestacies involve only small estates: W.A. Law Reform Commission, Report on Distribution on Intestacy (1973), 5.
51. See, Family Law Council, Property and Maintenance After Death (Working Paper No.5, 1979), 10ff, Joint Select Committee on the Family Law Act, Family Law in Australia (1980), vol.1, 100.
52. The validity of this proposal is considered by Professor P.H. Lane in two opinions prepared for the Joint Select Committee on the Family Law Act, n.51 above, vol.2, App.5.
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