DE FACTO RELATIONS
REGARDING
Commonwealth Powers (De Facto) Act 2003
Executive Summary
The form and pass of the proposed De Facto Relationships Act 2018 in the Australian Parliament will override any existed state or territory laws regarding De facto Relationship, when all states will be able to reach the common ground. It best regulates De facto law uniformly in Australia (including its external territories) and it best addresses the fundamental problem of separated state laws and for Queensland without such an act and hence protect Australian De facto couples’ interest and legal status nationwide and worldwide.
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Table of Contents
Page
1. Introduction 4
2. Findings 5-7
2.1 Current Legislation. 5
2.2 Comparsion of Commonwealth Act and Australian State Laws 5-6
2.3 Affected Stakeholders under current law 6-7
3. Recommendations. 7-9
3.1 Amendment/Improvement 7-8
3.2 Proposed Amendment (Bill). 8-9
4. Evaulation 9-11
5. Conclusion. 11
6. Appendices 12-12
7. Biblography. 12-14
1. Introduction
1.1 Significance of the report
The significance of this report is to investigate and evaluate the
shortcomings and problem of Queensland without a De facto
Relationship Act, thus making recommendations of further
changes to the current act or to analyse whether a legislation is
needed.
1.2 Key Issues
A form and pass of federal law regarding De facto Relationship will override any existed state or territory laws regarding De facto Relationship and all states will be able to reach the common ground, which best addresses the fundamental problem of Queensland without such an act and hence protect Australian De facto couples’ interest nationwide.
1.3 Sources of information – Primary
Sources of primary information that were used were the
Commonwealth Powers (De Facto) Act 2003, (NT) De facto
Relationships Act 2011, (NSW) De facto Relationships Act 1984,
(WA) Interpretation Act 1984, (VIC) Relationships Act 2008 and (TAS) Relationship Act 2003.
1.4 Sources of information – Secondary
Sources of secondary information that were used were several
newspaper articles and online websites.
2. Findings
2.1 Current Legislation
Whilst there is a Commonwealth Powers (De Facto) Act 2003,
Queensland is the only state in Australia without a De facto
Relationships Act. There are laws regarding De facto
relationships existing in all other states and they are currently
in affect to residents in those particular states or territories.
They are the (NT) De facto Relationships Act 2011, (NSW) De
facto Relationships Act 1984, (WA) Interpretation Act 1984,
(VIC) Relationships Act 2008 and (TAS) Relationships Act
2003. What are some of the differences and contradictions
between the state laws themselves/ the state laws and the
Commonwealth Act?
2.2 Comparison of Commonwealth Act and
Australian State Laws
The Commonwealth Powers (De Facto) Act 2003 is currently
in effect in Queensland, which defines a De facto relationship
as a marriage-like relationship (other than a legal marriage)
between 2 persons. States like Northern Territory, Western
Australia and Tasmania have a similar definition regarding De
facto relationship while New South Wales and Victoria include
the ground of “living on a bona fide domestic basis” and
“provides personal or financial commitment and support of a
domestic nature for the material benefit of the other”
respectively in their definitions. (NSW) De Facto
Relationships Act 1984 defines a De facto relationship as the
relationship between de facto partners, being the relationship of
living or having lived together as husband and wife on a bona
fide domestic basis although not married to each other.
Although the word “husband and wife” was used in the 1984
Act, the law was later amended in 1999 to include same-sex
couples in a wide range of property and financial orders. Meanwhile, it inserted a completely new definition of De facto relationship between two adult persons who live together as a couple, and who are not married to one another or related by family. Although Queensland does not have a De facto relationship act, the Queensland government introduced a property division regime including both heterosexual and homosexual couples in 1999, defining a De facto spouse as either 1 of 2 persons, whether of the same or the opposite sex, who are living or have lived together as a couple. Meanwhile, 2 persons are only a couple if they live together on a genuine domestic basis in a relationship based on intimacy, trust and personal commitment to each other, and they must not be cotenants. Amendments to existing property division regimes to include same-sex couples were passed in Victoria in 2001, Western Australia in 2002, Tasmania and the Northern Territory in 2003. Western Australia and the Northern Territory simply included same-sex couples within earlier definitions, defining a de facto relationship as “a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship”.
2.3 Affected Stakeholders Under Current Laws
Although all states seem to have a mutual understanding on defining a De facto relationship, the five state laws currently affecting local residents within the territory have something not in common with each other, which is an obstruction preventing state governments from seeking and reaching a complete common ground on De facto Relationships Act. For Queensland (Cth Powers), Northern Territory and Western Australia, a person is not restricted to enter a De facto relationship even the person is legally married to another person or is in another De facto relationship, oppositely it is strictly forbidden in New Souths Wales, Victoria and Tasmania, where a person married or registered in a relationship has no way to legally enter another De facto relationship by law.
The discrepancies between state laws do create contradictions and inconveniences to De facto couples who come from different states or living separately in states with different laws. It complicates their application process as applicants are likely to seek legal advice or assistance regarding their situation. Extra time and financial cost is added as a burden on not only the applicants but also the court which is responsible to handle and work out which of the state laws should be applied on the applications and which of them are in the both the applicants and the court’s flavor. All states except the Northern Territory and Western Australia have legislation permitting couples to register their domestic relationships and it explains why a married person is allowed to enter a De facto relationship in those two states. The sociological perspective on De facto relationships may be vary in different states as well and, as a result, the states can hardly reach the common ground due to the distinctive legislations and the different social values between states.
3. Recommendations
3.1 Amendments/ Improvements
All states except Western Australia had referred the custody, maintenance, and access of ex-nuptial children issues regarding a breakdown of a De facto relationship to the Commonwealth between 1986 and 1990 under Section 51 (xxxvii) of the Australian Constitution. The Family Court and the Federal Circuit Court became the courts in charge of maintenance orders in those states while Western Australia had not referred any powers as they were running their own specialist court, the Family Court of Western Australia. If an application of court orders is made, they are to be determined in the same manner as for a married couple getting divorced. The referral power is an important step forward for a federal legislation and it can be further expanded to all matters and grounds of a De facto relationships, from definition, settlements, jurisdiction to international recognitions. It would be an anachronism to differentiate De facto couples and married couples in modern society as an amendment to the Marriage Act to legalize same-sex marriage federally had passed into law in 2017. Both De facto couples and married couples are living together on a genuine domestic basis in a relationship based on intimacy, trust and personal commitment to each other. It is reasonable that a De facto couple, with the commitment to a shared life and intermingled finance, should be treated the same manner as a marriage couple to all extent and a person in any of these relationships should be equally treated and be given the equal rights and opportunities inside and outside Australia. Proposed amendment. It is also suggested that the Family Court of Australia should restate that a De facto relationship can be terminated by an intention to separate, even if that is not a mutual intention, but has to be communicated to the other party before it is treated as a settled decision.
3.2 Proposed Amendments (Bill)
“PAKKY’s BILL TO DE FACTO REALTIONSHIPS 2018”
1. A complete REPEAL and REPLACE of Commonwealth Powers (De Facto) Act 2003, (NT) De Facto Relationships Act 2011, (NSW) De facto Relationships Act 1984, (SA) De Facto Relationships Act 1996. A complete REPEAL and REPLACE OF sections regarding De facto Relationships in Relationships Act 1984 (WA) Interpretation Act 1984, (VIC) Relationships Act 2008 and (TAS) Relationship Act 2003.
2. Repealed current Acts and laws will be replaced by “De Facto Relationships Act 2018”, which is introduced to federally regulates De facto relationships in Australia, overriding any previous state legislation.
3. De Facto Relationships Act applies uniformly throughout Australia (including its external territories); any law made by a state or territory inconsistent with the Act is invalid.
4. The Act is made to integrate and unify current state laws regarding De facto relationships. Eliminating discrepancies and thus achieving common grounds of understandings of De facto relationships across Australia.
4. Evaluation
Referred to the proposed amendment, De Facto Relationships Act 2018 should define a De facto relationship as the relationship between 2 persons, regardless of sex, who live or have lived together in a marriage-like relationship, being the relationship of living or having lived together on a bona fide domestic basis although not married to each other. Either of the persons in the relationship must NOT be legally married to another person or in another registered or registerable De facto relationship. Similar to the Family Law Act 2009, the proposed act should recognise the property rights of each partner of De facto relationships on separation. The Family Court and the Federal Circuit Court will remain as the courts holding maintenance orders and the Family Court of Western Australia should be combined with the federal court. De facto couples should be granted the equal legal rights status and responsibilities as married couples with no exceptions.
The bill introduces a new federal legislation regarding De facto relationships, which not only leads all states in Australia to reach a common ground, but also to clarify any discrepancies, confusions and unclear sections brought by the state laws and the commonwealth power. It defends the legal rights of De facto couples and protects their interest as well.
At the moment, unlike a marriage in Australia which is internationally recognized, the legal status of a De facto relationships between the unmarried couple cannot exist outside a country which is not one of the countries practicing De facto relationships. Due to the limitations of Section 51 (xxxvii) of the Australian Constitution, their relationship is only covered by the countries laws of where they are indigenous resident if they move out of Australia or a participating state. The interests and legal rights of Australian De facto couples are not likely to be protected and defended worldwide as their status are not internationally recognized. De facto couples in Australia may meet difficulties when they are exploring working opportunities overseas, making foreign investments or moving and migrating overseas etc. The proposed De Facto Relationships Act 2018 further establishes De facto couples’ legal status, in which their relationships are treated no differences as married couples. Since De facto couples are granted a recognized legal status in the Constitution which is internationally recognised, they are free to move out the country and to take the State (Australia) with them when they move out. Their De facto legal status is likely to exist even outside of a participating State and each of the persons can conveniently participate in foreign and overseas activities.
The proposed De Facto Relationships Act 2018 also clears the definition of De facto relationships up and there will no longer be a married person involving into a De facto relationship or an unmarried person involving into more than one De facto relationships. De facto couples who do not share the same residential state no longer need to worry about the contradictions caused by different state laws. It reduces both time and money cost on the couples as applicants and on the court to deal with such applications and to decrease the costs of separating couples who are in dispute.
A decline and restrict on the act of entering into more than one De facto relationships, or entering into a De facto relationship when one is married can ensure a correct understanding of De facto relationships, which should be viewed as a genuine and trustworthy relationship. In cultures that practice marital monogamy, the same should apply to De facto relationships as well, where De facto partners should commit to each other. It prevents public misconception that De facto relationships are casual relationships which carry less responsibilities and are less valued than a settled marriage. Either of the persons should take a De facto relationship seriously if they as a De facto couple would like to enjoy the same status rights as married couples do.
5. Conclusion
The proposed De Facto Relationships Act 2018 does contribute to harmonisation of the meaning of De facto relationships in Australia law, and to clarify any discrepancies of many state laws regarding what constitutes and support the existence of a De facto relationship. The bill is likely to popularize De facto relationships and emphasize the importance of having such a federal legislation. The public would develop better understanding on how a De facto relationship works and what difficulties do De facto couples meet under current law system. Most importantly De facto couples’ status is enhanced and their relationship will be recognized internationally under the proposed amendments, thus promoting equal thoughts and mindsets between De facto relationship and marriage in the society.
6. Appendices
6.1 The changing meaning of “de facto” relationships
Jenni Millbank[footnoteRef:1]* (Associate Professor of Law, University of [1: ]
Sydney
6.2 (Section 51(xxxvii) of the Australian Constitution)
https://en.wikipedia.org/wiki/Section_51(xxxvii)_of_the_Australian_Constitution
6.3 Family Court of Western Australia
http://www.familycourt.wa.gov.au
7. Bibliography
Commonwealth Powers (De Facto) Act 2003, [s 1] Section 3;
(NT) De Facto Relationships Act 2011 Part 1 Section 3A;
(NSW) De Facto Relationships Act 1984 Part 1 Section 3 (1);
(WA) Interpretation Act 1984 Part II Section 13A;
(VIC) Relationships Act 2008 Section 5(b) Part 2.1;
(TAS) Relationships Act 2003 Section 4 Part 1, Section 11 Part 2;
Section 51 (xxxvii) of the Australian Constitution (De Facto Relationships); (No jurisdiction over de facto relationships outside Australia)
(NT) De Facto Relationships Act 2011
The Northern Territory Act defines a De facto relationship in
Part 1 Section 3A as 2 persons not married to each other but
have a marriage-like relationship. However, the following
matters are irrelevant:
a) The persons are different sexes or the same sex
b) Either of the persons is married to another person
c) Either of the persons is in another de facto relationship
Similar to the Commonwealth Act, a person in Northern Territory can enter as many de facto relationships as they like even they are legally married to someone else, regardless of sex.
(NSW) De Facto Relationships Act 1984
The New South Wales Act defines a De facto relationship in Part 1 Section 3. (1) as the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other. Although the term “husband and wife” is used in the act, the sex of the partners should no longer be a relevant consideration as the Marriage Act has been amended in 2017, which legalize same-sex marriage nationwide. Adults in both heterosexual and same-sex relationships are eligible to register. However, unlike some states, a relationship cannot be registered in New South Wales if either person is:
· Married (to anyone else)
· In another registered relationship (De facto)
· In a relationship as a couple with another person
Despite, a couple does not have to live together to be eligible to register their De facto relationship.
(WA) Interpretation Act 1984
The Western Australia Act defines a De facto relationship in
Part II Section 13A as a relationship (other than a legal
marriage) between 2 persons who live together in a marriage-
like relationship. It does not matter whether —
(a) the persons are different sexes or the same sex; or
(b) either of the persons is legally married to
someone else or in another De facto relationship.
A person in Western Australia is free to enter as many De facto relationship as they like regardless of their marriage status. The De facto partner of a person (the first person) is defined as the person who lives, or lived in the De facto relationship with the first person.
(VIC) Relationships Act 2008
The Victoria Act defines a registrable domestic relationship (De facto relationship) in Section 5(b) of Part 2.1- Preliminary as a relationship (other than a registered relationship) between two adult persons who are not married to each other but are a couple where on or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a (caring) relationship in which a person provides domestic support and personal care to the other person. In the meanwhile, each of the persons in the domestic (de facto) relationship
(i) is not married or in a registered relationship; and
(ii) is not in another relationship that could be registered under this Part.
(TAS) Relationships Act 2003
The Tasmania Act defines a significant relationship (De facto
relationship) in Section 4 of Part 1 – Preliminary as a
relationship between two adult persons who have a
relationship as a couple and are not married to one another or related by family. In Section 11 of Part 2 – Registration of Deed of Relationship, Two adult persons –
(a) who are domiciled or ordinarily resident in the State; and
(b) who are not married or a party to a deed of relationship; and
(c) who are in a significant (De facto) (or caring) relationship –
may apply to the Registrar, in a form approved by the Registrar, for registration of a deed of relationship in relation to significant (De facto) (or caring) relationship.
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