4. Legal recognition of domestic relationships

Updates and background for this project (Digest)

• Introduction
• Current presumptive approach
• Alternative approaches
• The Commission’s view

INTRODUCTION

4.1 This Chapter considers the ways in which a relationship should be brought within the operation of the Property (Relationships) Act 1984 (“the PRA”), and any other legislation dealing with “domestic relationships”. It discusses and makes recommendation for a system of registering relationships so as to attract the legal rights and obligations that apply to de facto and close personal relationships.

CURRENT PRESUMPTIVE APPROACH

4.2 Under the PRA, those who meet the definition of “domestic relationship” automatically fall within the operation of the Act, without the need to register a relationship. Accordingly, certain types of relationships are presumed to be “domestic relationships” and the PRA therefore takes a presumptive approach to recognition of those relationships.

4.3 The main advantage of a presumptive approach is that people are not required to take active steps to have the PRA apply to their relationship. As a result, they do not need to be aware of the PRA to benefit from it.¹ Should they not want to be covered by the PRA, the presumptive approach allows them to “opt out” of the operation of the Act by making private agreements.² The ability to “opt out” addresses the potential for a presumptive approach to be over-inclusive, although it is only of value to those with some knowledge about the legislation.

4.4 A key difficulty with the presumptive approach is that it relies upon a relationship being objectively identifiable as a domestic relationship. It will not always be clear whether a relationship is or was a domestic relationship and particular difficulties may arise where parties disagree about the nature of their relationship³ or a third party disputes that a domestic relationship existed, following the death of a party. ⁴ Even where a relationship is clearly identifiable as a domestic relationship, there may be uncertainty about when the relationship commenced or terminated.⁵ These problems may be exacerbated in relation to close personal relationships, which are arguably less easy to identify than de facto relationships.⁶ At present, certainty for the parties can only be obtained by seeking a declaration from the Court as to the existence and duration of a domestic relationship, under s 56 of the PRA.

ALTERNATIVE APPROACHES

4.5 In DP 44, we set out three possible alternative approaches to that currently taken by the PRA.⁷ The first alternative approach is a system of voluntary registration. Under this approach, the PRA would only apply to people who have formally registered their relationship. The major benefits of registration are certainty and autonomy; the parties to a relationship can be readily identified and have demonstrated that they know about, and agree to be bound by, the legislation. Further, parties who would not come within the PRA on a presumptive approach because, for example, they do not live together, could elect to bring their relationship within the legislation. An additional benefit is the symbolic value of registration. It enables people who do not wish or are legally unable to marry, such as lesbian and gay couples, to have their relationship formally acknowledged by the State.

4.6 Despite the advantages of registration, there are a number of reasons for objecting to registration being the sole means of relationship recognition under the PRA.⁸ A significant concern is that this approach relies upon couples being informed about the legislation and taking active steps to bring their relationship within the PRA. In addition, it forces individuals in same sex relationships to make a public declaration of their sexual orientation before they can benefit from the legislation. Concerns about homophobia may mean couples are disinclined to make such a declaration.⁹ Same sex couples may also be hesitant about participating in a form of relationship recognition that is perceived as a “second best” option.¹⁰

4.7 The second alternative approach is to retain the current presumptive approach, but also introduce an optional registration system for those people who wish to have their relationships recognised more formally.¹¹ The flexibility of this option would address many of the disadvantages of registration. However, there is the possibility that a hierarchy of relationships would develop, either in the approach of the Courts¹² or in community perceptions, with registered domestic relationships being placed above presumptive domestic relationships.¹³ In addition, the optional nature of the registration system would not address concerns about the status of registration as a “second best” option.¹⁴

4.8 The third approach outlined in DP 44 was to apply a presumptive approach to certain relationships, while giving people the option to register other types of relationships.¹⁵ For example, it could be presumed that people in de facto relationships were automatically covered by the PRA, while people in close personal relationships, who wanted to come within the PRA, could register their relationships.

The approach in other jurisdictions

4.9 De facto relationships are now recognised by statute in all States and Territories of Australia.¹⁶ In general, a presumptive approach is taken to relationship recognition.¹⁷ Exceptionally, in Tasmania, the Relationships Act 2003 applies a combination of the presumptive and registration approaches in relation to “personal relationships”.¹⁸ For the period between 1 January 2004 (when the Relationships Act commenced) and 16 December 2005, 57 “significant relationships”¹⁹ had been registered.²⁰

4.10 Recently, in the Australian Capital Territory, the Civil Unions Bill 2006 proposed the introduction of provision for couples, either of the same or opposite sex, to enter into a civil union.²¹ In so far as it involves a public ceremony, a civil union resembles more closely a legal marriage than registered relationships in Tasmania. The Civil Unions Bill set out a procedure for entering into a civil union,²² similar to that for entering into a marriage,²³ including a requirement that the couple make a declaration before an authorised celebrant and one other witness.²⁴ The Bill expressly provided that a civil union was to be treated for all purposes under territory law in the same way as a marriage.²⁵ Among other things, the Bill provided for the Domestic Relationships Act 1994 (ACT) to recognise civil unions as a personal relationship for the purposes of that Act.²⁶

4.11 Statutory schemes recognising de facto relationships have also been enacted in other jurisdictions around the world including Canada, New Zealand, the USA and several parts of Europe.²⁷ A variety of approaches have been taken, including same sex marriage,²⁸ registered partnerships,²⁹ presumptive recognition³⁰ and a combination of these approaches.³¹ In the United Kingdom, the Civil Partnership Act 2004 recently came into operation.³² It makes provision for people in same sex relationships to register their relationship as a civil partnership, as a means of gaining formal legal recognition of their relationship. Registration as a civil partnership gives rise to various legal rights and responsibilities, including, for example, employment and pension benefits, payment of maintenance and child support, and access to fatal accidents compensation.³³

Submissions

4.12 The Anglican Diocese of Sydney³⁴ and the Women’s Legal Resources Centre³⁵ supported supplementing the current presumptive approach with an optional registration system. The Women’s Legal Resources Centre submitted that the option of registration would enable couples who may not fall within the PRA under a presumptive approach to elect nevertheless to be bound by the legislation.³⁶ Lesbian and Gay Solidarity, which highlighted the potential for better formal recognition of relationships as a particular advantage, also supported this approach.³⁷

4.13 The Gay and Lesbian Rights Lobby supported retention of the current presumptive approach. It submitted that adding an optional registration system would entrench a three-tiered hierarchy of relationships and could enhance difficulties of proof for people who have not registered their relationship.³⁸ Registration as the sole means of recognition for either de facto or close personal relationships was rejected on the basis that many relationships that would be recognised under a presumptive approach would be left unrecognised. A similar view was expressed by the judges of the Equity Division of the Supreme Court.³⁹

4.14 New South Wales Young Lawyers submitted that a registration system should not be introduced because of the danger that such a system would create different tiers of relationships.⁴⁰ This was a concern shared by the Anti-Discrimination Board, which also rejected registration on the basis that few people would register their relationships.⁴¹ The Board further submitted that legislation such as the PRA, which affords protection to less powerful parties within relationships, is significantly undermined if protection is only given to those who register their relationships.⁴²

Focus groups and questionnaire

4.15 There was general consensus in the focus groups that the presumptive approach should not be replaced by a system of registration. However, participants expressed a broad range of views on registration as an optional system, designed to supplement the PRA’s presumptive approach.

4.16 A commonly expressed objection to an optional registration system was that it perpetuated the second class status of same sex relationships. People described registration as “insulting” and akin to “a consolation prize”. In response to this objection, several participants commented that registration was in fact a positive alternative to marriage as they did not wish to participate in that traditional institution. To a large extent, the focus group discussions reflected a debate that exists more broadly, namely whether marriage should be the ultimate goal of reform efforts by the gay and lesbian community or whether registration is a preferable objective.⁴³

4.17 A number of participants considered that registration would offer same sex couples significant practical benefits. For example, a certificate of registration would provide clear evidence to a court or hospital that the parties were in a de facto relationship. Several participants mentioned that lesbians and gay men often have difficult relationships with their parents or other relatives and that same sex partners are frequently not acknowledged by an individual’s family of origin. In these circumstances, clear evidence of a relationship could be of significant comfort and value to de facto partners. The evidentiary aspect of registration could be beneficial not only in relation to matters involving the parties but also in relation to matters involving a child and co-mother or gay or lesbian step-parent. As the potential practical benefits of registration were important, many participants who favoured an optional system of registration expressed the view that it had to give rise to legal consequences.

4.18 Sixty-four per cent of respondents to the questionnaire supported an optional registration system. Sixteen per cent objected and nineteen per cent were unsure.⁴⁴ The comments of those in favour of optional registration reflected the concerns of focus group participants that registration should not be a merely symbolic act.

THE COMMISSION’S VIEW

4.19 The Commission shares the view expressed in both the submissions and the focus groups that registration should not replace the current presumptive approach to relationship recognition. As discussed above, there are several compelling objections to relying on registration as the sole means of bringing domestic relationships within the ambit of the PRA.⁴⁵ By contrast, the issue of whether an optional registration system should supplement the presumptive approach is more finely balanced, both in terms of policy considerations and community opinion.

4.20 The Commission acknowledges that there are strong objections to the introduction of an optional registration system. In particular, we recognise the concerns that registration may establish a hierarchy of relationships and that it may be perceived as offering same sex couples a second-rate form of formal recognition of their relationships. However, it is necessary to balance these concerns against the practical benefits of registration and the degree of community support for an optional registration system. Such concerns must also be considered against the background of developments such as the Marriage Amendment Act 2004 (Cth), which indicate that same sex relationships are unlikely to be given the same recognition as opposite sex relationships at the federal level in the near future.

4.21 While there are strong arguments both for and against, the Commission recommends that the current presumptive approach in the PRA be supplemented with an optional system of registration. The provision of a legal process that is available to same sex couples for the purpose of formalising their relationships if they wish to do so affects far more than the particular couples who take advantage of it. It is, of itself, an acknowledgement by the State of the propriety of such relationships and of the civil rights of the persons who are in them. It may therefore have a positive role in correcting or, at least, reproving homophobia. Current constitutional arrangements prevent the State of New South Wales from doing more. But it is as much as it can do. It is not correct, therefore, to say that the availability of registration is a second-best response to the legitimacy of gay and lesbian relationships. It is, in fact, the best that the State can do. And the State should do it.

4.22 The option of registration offers those couples who wish to have their relationship formally recognised the ability to do so, but, by supplementing a presumptive approach, does not compel couples to register in order to come within the PRA. The experience in Tasmania suggests that, while the number of couples taking up the option to register may be small, given the general population size of Tasmania, it is not insignificant.

4.23 In putting forward a recommendation for a registration system, its application to opposite sex de facto relationships should be noted. It is likely that a registration system will be predominantly favoured by same sex couples, because it is the only means available to them for formal recognition of their relationships. Nevertheless, there is no reason in principle why an option to register a relationship should not also be available to any opposite sex de facto couple who wishes to do so. Practical benefits might flow from being able to provide ready legal proof of their relationship, which make registration desirable. There is no constitutional objection to providing for a registration system for opposite sex couples, because such a system is distinct from, and does not conflict with, the definition of a marriage in the Marriage Act 1961 (Cth). However, given that the State has referred its power over financial matters arising from the breakdown of a de facto relationship to the Commonwealth, registration of an opposite sex de facto relationship under State law could not affect recognition of that relationship for the purposes of property adjustment under federal legislation, unless the Commonwealth agreed to make provision for such legislative recognition.

Recommended amendments to the PRA

4.24 An optional registration system should be added to the PRA by enacting a new Part 1A and amending the definitions of “de facto relationship” and “close personal relationship” to include relationships that are registered under that Part.⁴⁶ As registration of a relationship would automatically bring that relationship within the meaning of “de facto relationship” or “close personal relationship”, the legal rights and obligations that attach to those relationships would automatically attach to any registered relationship.

4.25 It will be necessary for the PRA to stipulate those who are eligible to register a relationship and the ways in which registration can be revoked, as well as to address associated procedural and administrative matters. As the Commission has not consulted on the specific details of a registration system, the following discussion expresses our preliminary views on certain matters and does not contain final recommendations.

4.26 An important feature of registration is the autonomy that it gives individuals in determining the status of their relationships. However, the significance of the legal consequences that attach to a de facto or close personal relationship means that it is appropriate to impose some limitations on who is eligible to register such a relationship. The Commission considers that individuals should only be eligible to register a de facto or close personal relationship if both parties are of or above the age of 18 years. Where one or both of the parties is aged 16 or 17 years, eligibility should be dependant on authorisation being granted by a court. This approach would achieve consistency with the federal laws in relation to property adjustment⁴⁷ and would acknowledge that while 16 and 17 year olds can legally live in couple or carer relationships, individuals in this age bracket are in a period of developing maturity.

4.27 A further limitation, currently imposed on de facto relationships, relates to individuals who are related by family. As the Commission noted in Chapter 2,⁴⁸ the PRA does not recognise intimate relationships involving family members as de facto relationships. We have already put forward our reasons for retaining this limitation in the definition of a de facto relationship, and consider that it should also act as a limitation on those eligible to register their relationships as de facto relationships.

4.28 A separate exclusion is currently imposed in relation to close personal relationships. Under s 5(2) of the PRA, a close personal relationship is taken not to exist where domestic support and personal care is provided in return for a fee or reward or in the carer’s capacity as an employee or agent of another or of an organisation. This exclusion is imposed on the basis that the interdependence and mutuality that justify attaching legal rights and obligations to close personal relationships are not present in “professional” caring relationships. Were these relationships recognised as close personal relationships, the reach of the PRA would be inappropriately wide.

4.29 While a limitation of this nature is appropriate in relation to presumptive recognition, it is not necessarily appropriate in relation to registration of a close personal relationship. In the Commission’s view, there is no fundamental policy objection to permitting individuals to register a close personal relationship, where one party provides the other with professional support and care services. However, in recognition of the potential for exploitation that could exist in such a relationship, we consider that individuals who wish to register a close personal relationship in these circumstances should be required, as a condition of eligibility, to obtain independent legal advice prior to registration.⁴⁹ An example of this type of requirement is found in s 11(3) of the Tasmanian Relationships Act 2003.⁵⁰

4.30 A common condition of eligibility, found in several registration regimes,⁵¹ is that neither of the parties is married or is a party to a registered relationship. This requirement of exclusivity is designed to limit the number of competing obligations that may exist at any one time. It also reflects the policy objective of attaching consequences to interdependent relationships, which will typically involve only two parties at a time. However, a concern with an exclusivity requirement is that a person may be in more than one domestic relationship at a time⁵² and may wish to have more than one partner legally recognised. In the Commission’s view, the combination of an exclusive registration system and a non-exclusive presumptive system achieves an appropriate balance between certainty and flexibility.

4.31 A registration system will have to address the ways in which registered relationships are to be terminated. The Commission considers that rather than mirroring provisions of the Family Law Act 1975 (Cth) (“the FLA”) regarding the dissolution of a marriage, a more straightforward approach to termination is appropriate, given the diversity of registrable relationships. We suggest that registration of a relationship should be automatically revoked upon the death of one of the parties. Similarly, automatic revocation should occur if one of the parties marries. This would be consistent with a requirement of exclusivity and acknowledges the unlikelihood of registered relationships being treated as bars to marriage under the Marriage Act 1961 (Cth). Beyond these instances of automatic revocation, there should be scope for a mutual or unilateral application for revocation.

4.32 In jurisdictions with relationship registration schemes, it is common practice for there to be controlled public access to the relationship register. For example, in Tasmania, the Registrar may allow access to a person who has an “adequate reason” for wanting information from the register.⁵³ Similar provisions exist in New South Wales in relation to the Births, Deaths and Marriages Register.⁵⁴ While the Commission recognises that some same sex couples would not want information about their relationship to be publicly available, registration would be a voluntary process and statutory controls on public access would limit the potential for unjustified intrusions on privacy to occur. Further, we consider that a confidential register would be contrary to the public status and purpose of a registered relationship. Accordingly, we recommend that there should be controlled public access to information about registered relationships.

4.33 The Commission recommends that the Registry of Births, Deaths and Marriages have responsibility for administering the registration system.⁵⁵ The experiences of other jurisdictions suggest that this would not result in a significant increase in the Registry’s workload.

Recommendation 15
The current presumptive approach in the PRA should be supplemented with an optional system of registration. This registration system should be integrated into the PRA, with a new Part being enacted to address registration and consequential amendments being made to other provisions.


Recommendation 16
New South Wales should seek the support of the Commonwealth for federal legislation that recognises that de facto relationships registered under State law will qualify as de facto relationships for the purposes of federal legislation.

1. The focus groups and questionnaire indicated that many people are unaware that the PRA exists or have very limited knowledge about its provisions: see Appendix C.

2. See PRA s 44-52. See Chapter 12.

3. See eg Saba v Xu [2004] NSWSC 858; Zaronias v Constantine [2004] NSWSC 774.

4. See eg Bogan v Macorig [2004] NSWSC 993.

5. See eg Dalli v Dragovic [2004] NSWSC 1033; Dridi v Fillmore [2001] NSWSC 319.

6. See eg Bogan v Macorig [2004] NSWSC 993.

7. DP 44 at para 2.78 - 2.80.

8. See DP 44 at para 2.74 – 2.76 for further discussion of this point.

9. See eg NSW Attorney-General’s Department, ‘You Shouldn’t Have to Hide to be Safe’: A Report on Homophobic Hostilities and Violence Against Gay Men and Lesbians in NSW (2003).

10. Lesbian and Gay Legal Rights Service, The Bride Wore Pink (2nd ed, Sydney, 1994) at Ch 8.3.

11. DP 44 at para 2.78.

12. A court may be hesitant to find that a de facto relationship exists if a couple has the option to register their relationship but chooses not to do so: see Gay and Lesbian Rights Lobby Inc, Final submission at 6.

13. And marriage retaining pre-eminence over both. See, for example, P Ettelbrick, “Wedlock alert: a comment on lesbian and gay family recognition” (1996) 5 Journal of Law and Policy 107.

14. See para 4.6 above.

15. DP 44 at para 2.79.

16. South Australia is the only jurisdiction that does not currently recognise same sex relationships: see De Facto Relationships Act 1996 (SA) s 3.

17. Property Law Act 1958 (Vic); Domestic Relationships Act 1994 (ACT); Property Law Act 1974 (Qld); De Facto Relationships Act 1991 (NT); Family Court Act 1997 (WA); De Facto Relationships Act 1996 (SA).

18. Relationships Act 2003 (Tas) s 4, 5, 6. A “personal relationship” equates to a domestic relationship.

19. Comprising both same sex and opposite sex relationships.

20. Information received from the Tasmanian Department of Births, Deaths and Marriages, 16 December 2005.

21. The Governor-General disallowed the Civil Unions Bill on 13 June 2006.

22. See Civil Unions Bill 2006 (ACT) cl 9-11.

23. See Marriage Act 1961 (Cth) Pt IV Div 2.

24. Civil Unions Bill 2006 (ACT) cl 11.

25. Civil Unions Bill 2006 (ACT) cl 5.

26. Civil Unions Bill 2006 (ACT) Sch 1[34], [72].

27. Civil unions, or registered partnerships, are formally recognised in the following countries: Denmark, Norway, Israel, Sweden, Greenland, Hungary, Iceland, Netherlands (now recognises same sex marriage), France, South Africa, Belgium (now recognises same sex marriage), Canada (now recognises same sex marriage), Germany, Portugal, Finland, Croatia, Luxembourg, New Zealand, United Kingdom, Andorra, Slovenia, Switzerland, and in some regions of Argentina, Spain, Italy, Brazil, United States of America, Liechenstein, Austria, Czech Republic, Greece, Ireland, Poland, Honduras: see International Gay and Lesbian Human Rights Commission, “Where You Can Marry: Global Summary of Registered Paternerships, Domestic Partnerships and Marriage Laws”, http: www.iglhrc.org/site/iglhrc/content.php?type=1&id=91. See also DP 44 at para 2.42-2.54.

28. For example, the Netherlands and Belgium.

29. For example, the United Kingdom and New Zealand.

30. For example, Hungary, Canada, Sweden and Spain.

31. In Quebec, for example, couples can choose to join in a civil union. However, even if couples choose not to join in a civil union, a limited range of laws presumptively recognises de facto relationships. See Civil Code of Quebec.

32. The Civil Partnership Act 2004 (UK) commenced on 5 December 2005.

33. For commentary, see S Cretney, Same Sex Relationships: From ‘Odious Crime’ to ‘Gay Marriage’ (OUP, 2006) Ch 2.

34. Anglican Diocese of Sydney, Submission at 4.

35. Women’s Legal Resources Centre, Submission at 6.

36. Women’s Legal Resources Centre, Submission at 7. The Centre did, however, also express a number of concerns about registration, including low levels of uptake and the creation of a hierarchy.

37. Lesbian and Gay Solidarity, Submission at 2.

38. Gay and Lesbian Rights Lobby Inc, Final submission at 6.

39. Equity Division of the Supreme Court of NSW, Submission at para 30.

40. NSW Young Lawyers, Submission at 3.

41. Anti-Discrimination Board of NSW, Submission at 8.

42. Anti-Discrimination Board of NSW, Submission at 9.

43. See, for example, R Graycar and J Millbank, “The bride wore pink … to the Property (Relationships) Legislation Amendment Act 1999: relationships reform in New South Wales” (2000) 17 Canadian Journal of Family Law 227.

44. One percent did not respond to this question: see Appendix C.

45. See para 4.6 above.

46. The Relationships Act 2003 (Tas) Parts 2 and 3 provide a useful model for this approach.

47. As 16 and 17 year olds are able to marry under the Marriage Act 1961 (Cth), with authorisation, they have access to the property adjustment provisions under the FLA.

48. See para 2.35-2.38.

49. In addition, the Crimes Act 1900 (NSW) provisions concerning incest go some way to addressing concerns about family members entering into exploitative relationships: Crimes Act 1900 (NSW) s 78A, s 78B and s 78C.

50. “Each party to a caring relationship must lodge a certificate, in a form approved by the Registrar, from a solicitor of the Supreme Court of Tasmania which states that the solicitor provided legal advice to that party, independently of the other party to the relationship, as to –

(a) the effect of the registration of a deed of relationship on the rights of the parties; and

(b) the advantages and disadvantages, at the time that the advice was provided, to the party of registering a deed of relationship.”

52. For example, a person could simultaneously be in a de facto or a close personal relationship. See Straede v Eastwood [2003] NSWSC 280.

53. Relationships Act 2003 (Tas) s 20 – 24.

54. Births, Deaths and Marriages Act 1995 (NSW) s 46.

55. See para 4.9.