De Facto Relationships in Australia…
1. Formation of de facto relationships in Australian Law and the history of legal recognition for this relationship…
v Over the years, Australian law has had to change to accommodate the developing concept of family. De facto relationships are a significant area where Australian law has evolved through history to legally recognise the development of different family arrangements.
v How is a de facto relationship formed in Australian law?
A De Facto Relationship involves two people (homosexual or heterosexual) living together in a bona fide (in good faith) relationship without being legally married.
· Several circumstances determine whether two persons are in a de facto relationship. These include the duration of the relationship, whether or not a sexual relationship exists, the performance of household duties, the care and support of children and the ownership, use and acquisition of property and nature and existence of common residence.
· The De Facto Relationships Act 1984 (NSW) defines this relationship as one that lasts two years, unless children are involved, shows commitment and has existed in New South Wales for at least one-third of the time spent together. Section 3 of the De Facto Relationships Act 1984 (NSW) states that a de facto couple consists of a man and woman living in a bona fide relationship on a domestic basis.
· In 1999, the De Facto Relationships Act 1984 was renamed as the Property (Relationships) Act 1984. A De facto relationship was redefined as “the relationship between two persons who live together as a couple on a bona fide domestic basis”. The act was amended to eliminate discrimination against homosexuals and to include persons of the same sex who are in a stable and committed bona fide relationship.
v The history of the legal recognition of de facto relationships in Australian law
· All the States and Territories in Australia now have specific de facto legislation. This, however, was not the case many years ago, when the concept of de facto relationships was barely recognised by the law.
· 1971 to 1982: the number of people in de facto relationships in NSW alone increased dramatically as view and attitudes began to change.
· 1980’s: de facto relationships were quite common and had gained widespread acceptance both legally and socially. Part of the history of legal recognition of de facto relationships in NSW is as follows:
· The amendment of the War Pensions Act 1914 (Cwlth) to include de facto spouses. This was one of the first areas of legislation to legally recognise the de facto relationships.
· The Anti-Discrimination Act 1977 (NSW) was introduced to prohibit discrimination against all de facto couples. This was a big step towards legal recognition of de facto relationships as it demonstrated that the law was willing to accept this relationship as a legal one that should be free of discrimination.
· In 1984, the passing of the De Facto Relationships Act 1984 (NSW) saw the major step towards legal recognition of this alternative family arrangement. It provided a legal definition of a de facto relationship, the eligibility criteria to determine whether a de facto relationship existed, and protection of individuals on the breakdown of the relationship. In 1999, the De Facto Relationships Act 1984 (NSW) was amended to cover same-sex de facto relationships. It was renamed the Property (Relationships) Act 1984 (NSW).
· The Adoption Act 2000 legally recognised heterosexual de facto couples with the right to adopt a child if living in a bona fide domestic relationship for at least three years. The act does not allow same sex de facto couples to adopt.
· There are 53 acts in NSW alone that recognise de facto relationships, while other states and territories also have their own legislation. The law has been gradually recognising and accepting de facto relationships.
2. The legal procedure for the break-up of de facto family arrangements…
· No formal requirements are needed to dissolve a de facto relationship, as there was no legal marriage in the first place. A legal procedure is required, however, for the break-up of this family arrangement. In New South Wales, the main act dealing with the break-up of a de facto relationship is the Property (Relationships) Act 1984 (NSW) and the Family Law Act 1975 (Cwlth), if children are involved.
· Property Distribution and Settlements
The Property (Relationships) Act 1984 (NSW), deals with the distribution of property upon the break down of a de facto relationship in NSW. This act allows arrangements for property settlements and spousal maintenance in NSW. It deals with many types of property including real estate, personal assets, such as shares, money, furniture, cars, jewellery and interests in companies, businesses or partnerships. It requires that a claim must be made within two years after the date that the relationship ended.
· What will the court consider?
In deciding on the just and equitable division of property, the local or Supreme Court will consider the financial (ie; payment of rent, loans etc), non-financial contributions (ie; maintenance and improvement of property) and contributions to the welfare of the other spouse or family. Any written agreements or contracts between the couple made before, during or after the relationship are also taken into account if seen to be reasonable and signed by both parties upon independent legal advice.
The types of de facto agreements are:
- Cohabitation agreements: made before the relationship starts or during the relationship dealing with issues such as the payment of expenses, the status of assets that are brought into the relationship and the distribution of property in case of separation.
- Separation Agreements: made in contemplation of separation or after separation regarding issues such as property and maintenance.
Types of court orders in relation to de facto relationship property disputes include:
- Transfer of Property: Adjusting the property interests of one partner in favour of the other. The court does not have to transfer the ownership of property from one partner to another.
- Compensation for one partner: Deciding to give one partner a lump sum payment as compensation.
- Sale of Property: Involves the court ordering the sale of the property and distribution of the proceeds and ordering that the unsuccessful partner pays the other's legal costs.
The Death of a De Facto Partner
Upon the breakdown of a de facto relationship, if one partner dies, the court case for property distribution that did not finish can continue if a claim was made before the partner died.
· Spousal Maintenance
Upon the break-up of a de facto relationship, there is no requirement for one spouse to maintain the other. Under special limited circumstances, however, the Property (Relationships) Act 1984 (NSW) allows for spousal maintenance, which is the money paid by one spouse to support the other. This law only applies if:
· The de facto relationship lasted for at least two years, unless there are children of the relationship and the applicants lived in New South Wales for at least one third of the relationship and when the claim was made.
· One spouse has made substantial contributions (financial or non-financial) for which he/she would not be compensated if a court order were not made, thus resulting in injustice.
· The former spouse cannot work because he/she is caring for a child of the relationship who is under 12 years or a physically or mentally impaired child who is under 16 years.
· The former spouse has lost his/her earning capacity or it has been affected as a result of the relationship and maintenance would help to increase earning capacity by study or other means.
The local or state court will take into consideration many circumstances in deciding the amount of spousal maintenance to be paid to one party of the broken down relationship. These include:
· The financial needs of each partner and child support payments
· The financial circumstances of each partner and ability to provide spousal maintenance as well as any property settlement decisions between the de facto couple
Any entitlements or maintenance of a spouse (not a child) will stop if he/she marries or enters another de facto relationship.
3. Care of children and maintenance in de facto relationships…
The Family Law Act 1975 (Cwlth) deals with matters of childcare and maintenance, irrespective of whether the parents were married or not.
· During a de facto relationship, children are cared for and maintained by both parents, with the best interests of the child always prevailing. The Family Law Act 1975 (Cwlth) states that unless a court orders otherwise, each parent has full parental responsibility for their children under 18 years and this is not affected by any change in the parent’s relationship.
· UN Declaration on the Rights of the Child: is an international treaty by which Australia is bound. It sets out the responsibilities of parents in regard to their children.
· The Children (Equality of Status) Act gives all children the same legal status no matter what relationship they are born into. They are to receive the same financial and emotional support as nuptial children during and after the de facto relationship.
· Upon the break-up of a de facto relationship, the care and maintenance of a child must continue. These matters dealing with children come under the Family Law Act 1975 (Cwlth) and are enforced by the Family Law Courts.
· In 1995, the Family Law Reform Act introduced parenting plans that cover all decisions in relation to the child of any family arrangement.
A parenting plan is a written agreement between both parents. It can cover:
- Who the child will live with and have contact with.
- Maintenance agreements
- Other aspects of responsibility including education, holidays, religious and medical issues, or any other specific arrangements, not including maintenance for spouse, but can include child support provisions.
If parents can agree upon a parenting plan, this plan can be registered in the court once it is proven that each parent has either had independent legal advice or consultations with a court counsellor during the development of the plan. Before registering the parenting plan the court must be satisfied that it is in the best interests of the child. If parents cannot agree upon a parenting plan, the courts will make the decisions regarding care and maintenance of the children. These are called parenting orders.
Types of parenting orders
Under the Family Law Act 1975 (Cwlth), there are four types of parenting orders that can be issued by the court upon the breakdown of a de facto relationship. These include:
- Residence - an order stating whom a child lives with, including any shared arrangements. Residence orders are usually made in favour of one parent with contact to the other parent, however a joint residence order is possible where certain times are spent with each parent. After an investigation, the Family Court may issue residence orders in favour of other people, who are significant in a child's life.
- Contact - an order stating the times that a child may have contact with a parent whom they are not living with, or anyone else who plays an important part in their life. Contact can be either face to face, by phone or letters.
- Specific issues - an order about any other aspect of parental responsibility. This may include the sport, education or issues relating to religion.
- Child maintenance - an order stating the financial support provided for a child from one parent to the other. Reforms to the Family Law Act in 1988 have increased the right of the child to receive maintenance. In determining maintenance the court considers the needs of the child, the earning capacity and income of the child, the earning capacity and income of the parents and the commitments of each parent to maintain others. The passing of the Child Support Assessment Act 1989 (Cwlth) established a Child Support Agency within the Australian Taxation Office to ensure regular payments of child maintenance by the non-resident parent of a broken down marriage or de facto relationship.
In 1996 custody, access and guardianship orders after separation were changed to residence, contact and specific issue orders by the Australian government to make children seem more like humans rather than the possessions of their parents.
Section 68F (2) of the Family Law Act 1975 (Cwlth) sets out the criteria that the Family Court must consider when deciding what is in the child’s best interests. This may include:
- The wishes expressed by the child, if seen to be in the child’s best long-term interests.
- The nature of the child's relationship with both parents and other relevant people as well as the attitude of parents towards their child and their parenting responsibilities and financial capacity to care for their child.
- The child's maturity, sex and background (including any need for the child to maintain a connection with the culture of ATSI people).
- The need to protect the child from physical or psychological harm caused by abuse, ill treatment or violence to a child or a member or their family.
4. The effect of violence on de facto families and the legal response to it…
v The effect of violence in de facto relationships
Partners in de facto relationships, most commonly women and children, often experience the same violence as those in other arrangements including marriage and even single-parent families. Violence and its negative effect largely impact upon the de facto family, especially if children are involved. It causes victims to live in fear for their safety and the safety of their children, other family members and their property.
This domestic violence comes in many forms including:
· Sexual abuse eg forced sexual activity such as rape
· Physical abuse eg using physical force
· Psychological abuse eg intimidation and humiliation
v The legal response to violence in de facto relationships
Victims are provided with people in the community who can help them. These people include the victim’s doctor, a counsellor, or members working for special violence services. If these people cannot help, it is necessary for the law to intervene.
The Police Service now has implemented education programs for its members and every police station in Australia has a Domestic Violence Liaison Officer, thus ensuring offenders do not get away with this serious crime. These officers are trained in family violence and will assist victims in taking further legal action through the courts, such as restraining or protection orders. The Crimes Act 1900 (Cwlth) was amended in 1982, giving police increased power and authority to enter a house and charge the perpetrator with assault as well as confiscate guns and other weapons from a violent situation.
· The Courts in response to violence in de facto relationships
The court will grant restraining orders or protection orders to prevent further violence to the victim whether a partner to the relationship or a child of the relationship. Every state and territory throughout Australia has legislation enabling courts to provide orders from de facto family violence and any other family violence alike. Applications for these orders can be made to Local or Magistrates Courts, also known Courts of Petty Sessions in some States. Applications can be made without legal representation and Police officers will act in some circumstances, if they feel it is necessary to protect the victims.
Domestic Violence Resource Centres in each State or Territory can assist victims in applying for these protective measures as family violence is a very serious crime and is punishable by the imposition of jail sentences and other penalties.
Laws protecting victims of de facto relationship violence
The Family Law Act 1975 (Cwlth) allows for the application of restraining orders for all children and married couples while the Property (Relationships) Act 1984 (NSW) (formerly known as the De Facto Relationships Act 1984 (NSW)) allows for the application of restraining orders by de facto spouses
· Protection orders: known as Apprehended Violence Orders (AVOs) are orders made under State or Territory laws which provide a quick and flexible method of obtaining legal protection from a violent de facto relationship. These can be made by the victim or a solicitor, friend, support worker or police officer on behalf of the victim.
An Apprehended Domestic Violence Order - used when there is a domestic relationship between two people. This is the protection order used by victims of de facto relationship violence. The courts issue them and they work by protecting the victim and keeping violent members away from their family and reducing domestic violence in de facto relationships by restricting the behaviour of the subject for a period of time.
· Family Law Response to Violence against children in de facto relationships
The Crimes Act protects children against any for of violence. The Children and Young Person’s Care and Protection Act 1998 (NSW) provides further protection for all children. If a child has been abused in any family arrangement, including a de facto one, an urgent application can be filed in any registry of the Family Court or Federal Magistrates Service. The court can then grant restraining orders and other orders regarding childcare and protection.
5. The legal response to a de facto family arrangement in terms of break-up of the relationship, care of children, maintenance and violence…
· With de facto relationships and family law involving children, the law is considered to be effective when justice has been achieved for the individuals of the family and society as a whole. The law is effective for the individuals of a de facto relationship when it demonstrates equality, accessibility, enforceability, resource efficiency and protection and recognition of individual rights.
Effectiveness of the law in dealing with de facto relationship break-ups
Equality: The Property (Relationships) Act 1984 (NSW) deals with property distribution and spousal maintenance upon the break up of de facto relationships. Parties to the relationship are treated equally under this law and the court takes the best interests of each partner into consideration in deciding these matters. Each party of the broken down relationship is treated fairly by the courts so that justice can be served and this makes the legal response to the break-up of de facto relationships very effective.
Accessibility: The law is fair and effective in this sense as both partners of a broken-down de facto relationship have equal access to make cohabitation and separation agreements. They also have access to local and state courts if matters of property distribution and spousal maintenance cannot be decided without legal interference. Legal information is available through the community, for example in the courts upon break-up of the relationship, so that justice is achieved.
Enforceability: Any laws dealing with property distribution, spousal maintenance and care and maintenance of children are legally enforceable by the courts. For example the Property (Relationships) Act 1984 (NSW) states that courts can decide upon distribution of property and this law is a guideline used by the courts in determining equitable division of the assets between the partners of the ended relationship. Any cohabitation or separation agreements are legally binding when signed by both parties upon legal advice. They become enforceable by the courts if seen to be fair and effective in delivering justice to de facto couples.
Resource Efficiency: The legal response to the break-up of a de facto relationship is effective in Australia, particularly NSW as the financial circumstances of each partner to the relationship are taken into account. Property distribution and spousal maintenance are decided by the court depending on the financial capacity of each partner.
Protection and recognition of individual rights: The legal system provides individuals with legal aid in the form of legal information from legal centres and courts in the community. This information effectively ensures de facto partners have the correct knowledge of their property and maintenance rights and responsibilities so they are not treated unjustly by the law.
Effectiveness of the law in dealing with care and maintenance of children in de facto relationships
Equality: All children are treated equally under the Australian legal system and all matters regarding childcare and maintenance are dealt with equally under the Family Law Act 1975 (Cwlth) and by the Family Courts of each state and territory. The best interests of the child always prevail.
Accessibility: All children have access to the Family Courts regardless of the relationship of their parents. The law ensures that children are provided with care and maintenance by their parents. Children are also provided with access to counsellors and other social workers who will help them deal with the issues affecting them due to the breakdown of the parents’ relationship.
Enforceability: Legislation under the Family Law Act 1975 (Cwlth) regarding the care and maintenance of children are legally enforceable by the courts so that children are protected and cared for.
Resource Efficiency: During the relationship parents have equal responsibility to provide for their child. Upon the breakdown of the arrangement, the courts consider the financial circumstances and abilities of each parent of the de facto relationship and decide through the issuing of a maintenance order, how much maintenance the non-resident parent will be able to provide for the child. This effectively provides children with maintenance, while also taking into consideration the parent who must pay.
Protection and Recognition of Individual Rights: Australian law has been effective in its response to the care and maintenance of children in a de facto relationship, as it recognises the rights of the child to be cared for and maintained as well as protected.
Effectiveness of the law in dealing with violence in de facto relationships
Equality: The law is very effective as it equally provides all victims of family violence, including children, with the opportunity to notify police of this serious crime. The police will treat each victim equally and will assist, if necessary, in the application for protection or restraining orders.
Accessibility: Victims of de facto family violence are provided with community members who can encourage them leave a violent situation. These people include police officers, trained family violence workers, counsellors and doctors. The Property (Relationships) Act 1984 and the Crimes (Domestic Violence) Amendment Act 1982 provides for victims to apply for protection orders such as apprehended domestic violence orders (ADVO). The Domestic Violence Advocacy Service in New South Wales is a free and confidential legal service for women who are experiencing domestic violence and need help. This accessibility to help shows that the legal response to violence in de facto relationships has been effective.
Enforceability: The laws allowing for victims to apply for protection orders are legally enforceable by the courts and breaches of these orders can result in fines of up to $5,500 and/or even 2 years imprisonment. Women’s Domestic Violence Court Assistance Schemes can help a women get an ADVO while also explaining the process and supporting her throughout it. This effectively ensures the safety of de facto violence victims.
Protection and Recognition of Individuals Rights: The law effectively protects victims of de facto domestic violence through the specific legislation allowing for ADVOs and also through various community support services that help victims to understand their rights and the legal process that deals with domestic violence.
6. The social background and moral/ethical acceptance of de facto family arrangements…
· In the early 1900’s, there was very little acceptance of de facto relationships in Australia. The concept of this arrangement was hardly recognised by the law. Very few people lived in these arrangements, and traditionally, the only option of a couple being together was the traditional relationship of legal marriage.
· Community attitudes had changed over the decade of 1971 to 1981, with a marked drop in the proportion of people expressing disapproval of de facto cohabitation. In a public opinion poll of 1971-72, 51 % of people indicated disapproval of de facto relationships and by 1977 this decreased to 35%.
Persons living with a Partner Marital Status by Age
60 and over
Source: ABS, Australian Families 1982, Unpublished Tables.
· From the period of 1976 to 1982 the number of de facto relationship arrangements increased from 131,876 to 337,316.The reason for this was the changing social attitudes of young, never married, widowed, divorced and separated Australians. Although the older generation was not so accepting of this arrangement due to such traditional values, many Australians no longer saw the need for marriage due to the advantages that come with a de facto relationship. For example living in a de facto relationship was seen to be a test run for marriage, and the financial cost to the couple was a lot less than that of marriage.
· De Facto Relationships had become quite common by the 1980’s. The introduction of the De Facto Relationships Act 1984 (NSW) reflected the growing acceptance of de facto relationships in Australia.
· Due to these changing social attitudes and the moral and ethical acceptance of de facto relationships in Australia, the law has gradually come to recognise this arrangement and each state and territory now has its own legislation regarding de facto couples.
7. Possible reforms to the recognition of de facto arrangements in family law…
· Although Australian law has come a long way in recognising de facto relationships, there are even further possible reforms, which could be implemented to ensure legal recognition of de facto relationships in family law.
Possible reforms may include:
· Same sex marriages: Legislation could be reformed to allow same sex de facto couples to legally marry. The moral and ethical issues of this reform must be considered, as this is a very controversial issue in Australia.
· The Property (Relationships) Act 1984 (NSW): covers issues regarding both de facto relationships and domestic relationships. A possible reform would be to make an entirely separate act for de facto relationships, thus reducing all the confusion that comes with the provisions of the act and any legal consequences depending on the circumstances. A specific act dealing with only de facto relationships should be made.
· Same sex adoption: Changes to the Adoption Act (WA) 1994 in September 2002 recognised heterosexual and homosexual de facto couples rights to adopt. Other states could possibly introduce legislation that allows homosexual de facto couples to adopt. Once again many moral and ethical issues must be considered as well as issues relating to children and their upbringing. Legislators should always consider the best interests of the child as having same sex parents may confuse children, as they are not particularly common in Australian society.
· Allowing de facto couples to resolve property and spousal maintenance issues in the Family Law Court: This reform will provide greater legal recognition of de facto relationships as they will be considered more as a family that is equal to a marriage arrangement.
· McCarthy, Suter, Watt; Textbook: Macmillan Legal Studies 2, first published in 2000