the law and resolution of de facto property disputes · an emerging trend for state courts to...

ELECTRONIC VERSION

THE LAW AND RESOLUTION OF DE FACTOPROPERTY DISPUTES

RESEARCH BULLETIN NO 9/96

ANITA SWEET

QUEENSLAND PARLIAMENTARY LIBRARYPublications and Resources Section

BRISBANENovember 1996

ISSN 1324-860XISBN 0 7242 7347 6

© Queensland Parliamentary Library, 1996

Copyright protects this publication. Except for purposes permitted by the CopyrightAct 1968, reproduction by whatever means is prohibited, other than by Members ofthe Queensland Parliament in the course of their official duties, without the priorwritten permission of the Parliamentary Librarian, Queensland Parliamentary Library.

ABSTRACT

In Queensland, Tasmania and Western Australia, property disputes between de factocouples are resolved under the common law. The other states and territories haveadopted statutory schemes for the resolution of property disputes between de factocouples. By contrast, property settlements following the divorce of married couplesare determined by the Family Court based on guidelines developed under the FamilyLaw Act. Common law remedies often produce unsatisfactory outcomes forapplicants, although since 1985 a new remedy, that of the constructive trust, hasdeveloped. However the application of this new doctrine has not yet been fullyexplored nor has the quantum of interest acquired under such trusts been fullydefined.

Shortcomings in the statutory regimes adopted in other states are also apparent.The statutory relief provided in New South Wales and followed in some otherstates, resembles that provided under the Family Law Act. However, the lawmakers made it clear that they did not intend de facto couples to have the samestatus under these laws as married couples did under the Family Law Act. The earlyinterpretation of the legislation by the courts reflected this view. However, there isan emerging trend for state courts to follow the interpretation by the Family Courtof equivalent provisions under the Family Law Act.

Social changes in recent years have resulted in pressure to consider whether de factocouples should have access to the same property settlement procedures as marriedcouples. Moreover, lobbying by same sex interest groups for recognition of theirrelationships and the progression of the law in other areas to accommodate suchrelationships poses the question of whether same sex couples should be included inproposed legislation. The desirability of predictability of outcomes and uniformityof procedures has led some to suggest that uniform laws should be adopted by allstates or powers referred to the Commonwealth to enable it to enact legislation togive the Family Court jurisdiction to hear such matters.

The Queensland Law Reform Commission recommended the Family Court as themost suitable court to determine property disputes between de facto couples. Italso proposed model legislation. The Goss Government introduced theCommonwealth Powers Amendment Bill 1995 in order to refer powers to legislatein relation to de facto property disputes and enable the Family Court to havejurisdiction. The Bill was not intended to cover same-sex couples. The Bill lapsedwith the change of government. The present government has not yet made clear itsintentions on this issue.

CONTENTS

1. INTRODUCTION ...................................................................................... 1

2. DEVELOPMENTS IN THE INSTITUTION OF MARRIAGE ANDTHE LAW .................................................................................................. 3

2.1 HISTORICAL LEGAL DISTINCTIONS BETWEEN MARRIAGE AND

COHABITATION .......................................................................................... 3

2.2 DEVELOPMENTS IN AUSTRALIA .................................................................. 4

3. ISSUES ASSOCIATED WITH THE EXTENSION OF PROPERTYDISTRIBUTION LAWS TO DE FACTO COUPLES.............................. 6

3.1 PERCEPTIONS OF THE FAMILY UNIT ........................................................... 6

3.2 PERCEPTIONS OF DE FACTO COHABITATION ............................................... 9

3.3 STATISTICS AND TRENDS REGARDING DE FACTO RELATIONSHIPS.............. 10

3.4 DE FACTO RELATIONSHIPS AND OTHER AREAS OF LAW ........................... 10

4. DE FACTO PROPERTY ISSUES UNDER THE CURRENT LAW ..... 11

4.1 THE GENERAL OR COMMON LAW............................................................. 11

4.2 LEGISLATION REGARDING DE FACTO RELATIONSHIPS .............................. 15

5. RECOMMENDATIONS FOR CHANGE............................................... 26

5.1 ISSUES ..................................................................................................... 26

5.2 QUEENSLAND .......................................................................................... 26

5.3 COMMONWEALTH .................................................................................... 32

5.4 REFERRAL OF POWERS TO THE COMMONWEALTH ...................................... 35

6. CONCLUSION......................................................................................... 38

BIBLIOGRAPHY ............................................................................................. 41

The Law and Resolution of De Facto Property Disputes Page 1

1. INTRODUCTION

People in de facto relationships now form a significant proportion of Australianfamilies. The number of de facto couples in Australia has more than doubledbetween 1982 and 1992 increasing from 168,600 in 1982 to 345,200 in 1992. In1982, 95.3% of couples were married and 4.7% were in de facto relationships.1 In1992, 92% of Australian couples were married and 8% were in de factorelationships. In Queensland in 1992 de facto couples made up 10% of all couples.2

On the breakdown of their relationships, Queensland de facto couples do not havethe benefit of the property distribution principles and procedures of the FamilyCourt of Australia. Under the Constitution, the Commonwealth has power tolegislate in respect of marriage and matters relating to divorce but this does notextend to power to legislate in respect of de facto relationships. The states havejurisdiction in relation to de facto relationships.

The laws governing de facto relationships vary from state to state. New SouthWales, Victoria, the Northern Territory, the Australian Capital Territory and SouthAustralia have legislated regarding the adjustment of property rights on thebreakdown of de facto relationships.3 In Queensland, Tasmania and WesternAustralia, cumbersome and complicated common law principles govern theresolution of property disputes between estranged de facto couples. Consequentlyproceedings in the state courts tend to be slower and more expensive.4 The statecourts do not have the specialist facilities or expertise of the Family Court.5

The increasing number of couples in de facto relationships and the difficultiesassociated with resolution of their property disputes under the current law havecaused many prominent lawyers, academics and politicians to urge that the FamilyCourt be given power to determine property disputes of de facto couples.However, the concept of “family” is changing and the debate is not limited toextending the powers of the court to heterosexual couples. Homosexual couples

1 Australian Bureau of Statistics, Australian Families, 1982 (Cat No 44070 December, 1982).

2 Australian Bureau of Statistics, Marriages and Divorces Australia 1994 (Cat No 3310.0).

3 A private members bill, The Family Relationships Bill, was introduced into the TasmanianParliament in 1995, but has since lapsed.

4 Australia, Report of Joint Select Committee on Certain Aspects of the Operation andInterpretation of the Family Law Act, November 1992, p 254.

5 Queensland Law Reform Commission, Shared Property, Discussion Paper No 36, October1991, pp 6-7.

The Law and Resolution of De Facto Property Disputes

are also calling for greater social and legal recognition. The Chief Justice of theFamily Court has supported their calls for the Family Court to be opened to them.6

However, his views are not necessarily reflective of the views of the majority ofAustralians.

The Queensland Law Reform Commission in its final report regarding de factorelationships issued in 1993 named the Family Court as the most suitable forum tohear and determine de facto property disputes. It proposed legislation which wouldapply to both homosexual and heterosexual couples.7

In 1995 the Goss Government introduced a Bill into the Queensland Parliamentwhich had the purpose of referring constitutional power to the Commonwealth toenact legislation conferring jurisdiction on the Family Court to resolve property andfinancial disputes between heterosexual de facto couples.8 With the change ofgovernment this Bill has lapsed.

This Research Bulletin provides a brief history of the position of de facto couplesunder the laws applicable to resolution of property disputes, and overviews thecurrent legislative frameworks that have been adopted in other states and therecommendations for change proposed for Queensland.

Terminology

For the purposes of the bulletin the term de facto relationship has been used torefer to those relationships where couples live together without being married in adomestic arrangement to all intents and purposes the same as that of a marriedcouple. This term is not intended to extend to relationships between same sexcouples. Where reference is made to same sex couples the term same sexrelationship will be used.

6 ‘Equality for gay couples’, Sydney Morning Herald, 9 January 1995, p 12.

7 Queensland Law Reform Commission, De Facto Relationships, Report No 44, June 1993,pp 11-12.

8 Commonwealth Powers Amendment Bill 1995.


2. DEVELOPMENTS IN THE INSTITUTION OF MARRIAGE ANDTHE LAW

2.1 HISTORICAL LEGAL DISTINCTIONS BETWEEN MARRIAGE AND

COHABITATION

It is only in relatively recent times that society has regarded legally bindingmarriages and de facto relationships as separate and distinct notions.9 Modern lawsregarding marriage have their origins in the Marriage Act of 1753. The MarriageAct of 1753, also known as Lord Hardwick’s Act, provided that any marriagecelebrated after 1754 without publication of banns or licence duly granted orcelebrated elsewhere than in the parish church or public chapel should be null andvoid in the absence of a special licence issued by the Archbishop of Canterbury.From this time the law did not permit any legal consequences to flow from a defacto relationship.

Prior to this Act the ecclesiastical courts had jurisdiction over laymen regardingmarriage and succession of personal property and the common law court hadjurisdiction over all matters concerning real property (title to land). The commonlaw courts accepted the adjudications of the ecclesiastical courts regarding thevalidity of a marriage but also recognised marriages that were entered into withoutany religious ceremony.

A valid marriage was a prerequisite for a son to inherit his father’s freehold estateand for a widow’s entitlement to dower, ie a widow’s right to a portion of herhusband’s lands for the term of her life. Where couples were not concerned aboutthe transmission of real property a Church marriage was not felt necessary. Couplescohabited according to local customs which were many and varied.10

In penal Australia cohabitation was more the norm than marriage as the harshconditions of the time did not lend themselves to permanence of relationships andcompliance with legal formalities.11 With the arrival of more and more free settlers

9 Margaret White, ‘De facto property rights - the present situation and possible futurelegislation’, in Family Law: Property - From Cradle to Grave, Continuing Legal EducationSeminar, Queensland Law Society, 31 May - 2 June 1991, p 2.

10 Up until the end of the sixteenth century a wife did not have a capacity under the law to holdproperty in her own right. According to the doctrine of unity of legal personality a husbandand wife were considered to be one person, the husband. A wife had a right to be maintainedby her husband and other special rights such as a right to dower.

11 Anne Summers, Damned Whores and God’s Police: The Colonization of Women in Australia,Penguin Books, 1975, p 271.


marriage rates increased. However, while cohabitation became less and less sociallyacceptable it still occurred but predominantly amongst the poor and unemployed.12

2.2 DEVELOPMENTS IN AUSTRALIA

When the Australian Constitution was drafted the Commonwealth was givenpowers over family law. It was invested with power to make laws with respect to:

• marriage

• divorce and matrimonial causes.13

The framers of the Constitution were concerned to avoid the problems associatedwith a lack of uniform laws as had occurred in the United States where the statesretained responsibility over marriage and divorce. The conventional interpretationof the Constitutional power regarding marriage and divorce and matrimonial causesis that it does not extend to what many now might consider to be the broad scope of‘family’ law matters.14 Thus de facto partners and their children cannot be coveredby Commonwealth laws under these powers.

It was to be almost 60 years before the Commonwealth Parliament exercised itspower under the Constitution. Prior to 1959 and the introduction of the nationaldivorce and matrimonial causes legislation, married couples were subject to thecommon law separate property principle. Under this principle each individual isentitled to property to which they have legal title unless they can claim an equitableinterest by way of a resulting, implied15 or constructive trust.16 Women, whose

12 New South Wales Law Reform Commission, Report on De Facto Relationships, June 1993,p 48.

13 Australian Commonwealth Constitution, s 51(xxi) and (xxii). ‘Matrimonial cause’ is definedin the Family Law Act 1975 in s 4. The term is defined in Osborn’s Concise Law Dictionaryas “Suits for divorce, nullity of marriage, judicial separation and jactitation of marriage.”

14 Some have challenged this interpretation of the Constitution. Mr Justice Nygh has argued fora broader interpretation that the Commonwealth Parliament could provide that a marriage isconstituted by “mutual consent ... inferred from subsequent cohabitation.” See NSWLRCReport, 1993, pp 31-32.

15 A resulting or implied trust is one which is founded upon the unexpressed but presumedintention of a person who purchases property. It arises where the legal owner has notprovided all the purchase moneys. The trust is presumed in favour of the person who hascontributed to the purchase price. Their beneficial interest is proportionate to theircontributions.


contribution to the family resources has traditionally been by way of unpaiddomestic work, were disadvantaged by such principles (See section 4.1 of thisBulletin for a discussion of the general law and equitable principles). TheMatrimonial Causes Act 1959 saw a departure from this principle but only inrelation to married couples. The laws applying to married couples and de factocouples diverged further with the introduction of the Family Law Act in 1975.

2.2.1 The Family Law Act

The Family Law Act 1975 (Cth) (Family Law Act) established and vested exclusivejurisdiction in a new federal court, the Family Court of Australia. The then PrimeMinister the Honourable Gough Whitlam in his Second Reading Speech on 28November 1974 said:

The essence of the Family Courts is that they will be helping courts ... Thesecourts will therefore be very different from the courts that presently exercisefamily law jurisdiction. The Family Court will do much more than that. Herewill be a court, the expressly stated purpose of which is to provide help,encouragement and counselling to parties with marital problems and to haveregard to the human problems, not just their legal rights.17

The Family Law Act allowed parties to a marriage to bring actions concerningcustody, maintenance and property rights of each other or of a child of the marriage.The Court was given its own counselling and welfare staff. The Judges of the courtwere to be chosen on the basis of their suitability by reason of their training,experience and personality.18 The Court was given power to make such orders as itfelt fit altering the property interests of the parties to the marriage, whether theproperty was held in joint names or in the sole name of one of the parties.19 Therewas no requirement for a party to show that they had a prior legal or equitableinterest in the property. The Act specified criteria to be applied by the Court indetermining property and maintenance applications. The Court was

16 Where the owner of property by words or conduct or both gives his or her partner theexpectation that the partner will receive an interest in that property and the partner on thebasis of that expectation acts to his or her detriment.

17 Hon E G Whitlam, Parliamentary Debates, House of Representatives, Family Law Bill,28 November 1974, p 4322.

18 Family Law Act, s 22(b).

19 s 79.


required to take into account the following:

• financial and non-financial contributions made directly and indirectly to theacquisition, preservation and improvement of property

• contributions made to the welfare of the family, including those made in thecapacity of homemaker and parent

• the financial resources and needs of the parties.

The Family Law Act attempted to reduce the costs associated with legal remediesupon marriage breakdown by encouraging parties to settle their differences bythemselves.

The Family Court’s jurisdiction at its inception did not extend to ex-nuptial children.The position of children of unmarried parents was improved in the 1970’s. At thistime legislation abolishing the status of illegitimacy and preventing discriminationagainst ex-nuptial children was passed in all states except Western Australia.20

However, on the breakdown of relationships, the issues of custody, guardianshipand access of these children could still not be dealt with by the Family Court. Thiscaused considerable difficulty for mixed families. Where a family was composed ofsome children born of the marriage and some who were not, the former were dealtwith by the Family Court and the latter by state courts. Finally, in 1988, after muchlobbying, four states referred their powers over ex-nuptial children to theCommonwealth.21 This enabled these children to come within the province of theFamily Court.

3. ISSUES ASSOCIATED WITH THE EXTENSION OF PROPERTYDISTRIBUTION LAWS TO DE FACTO COUPLES

3.1 PERCEPTIONS OF THE FAMILY UNIT

Extending the laws to de facto couples is problematic. Those opposed to legislationextending to de facto couples frequently express concern that to do so encouragesde facto relationships and undermines the institution of marriage and the family.During debate of the New South Wales De Facto Relationships Bill the

20 Status of Children Act 1974 (Vic); Status of Children Act 1974 (Tas); Status of Children Act1978 (Qld); Status of Children Act 1978 (NT); Children (Equality of Status) Act 1976(NSW).

21 The states were NSW, Victoria, South Australia and Tasmania. Queensland referred itspowers in 1990 pursuant to the Commonwealth Powers (Family Law - Children) Act 1990.


then Leader of the Opposition Mr Nick Greiner stated in respect of the Bill that:

What it does is significantly and unequivocally undermine the unique position ofmarriage in our society. The legislation should be rejected on Judeo-Christianethical grounds. It should be rejected on humanist grounds.22

Much the same views were expressed in relation to the Victorian De FactoRelationships Bill (See discussion at 4.2.2). Mr Michael John, Member for BendigoEast in debate regarding the Property Law (Amendment) Bill 1987 commented that:

The Opposition was opposed to the De Facto Relationships Bill because itsought to equate de facto relationships with marriage, which the Oppositionbelieved would be a retrograde step in the law. Parliament should not passlaws that strike against the institution of marriage, a fundamental institutionin our society.23

The family is recognised as our basic social unit. Much discussion about the familyunit and perceptions of its position in our society was precipitated by theInternational Year of the Family in 1994. Much debate during 1994 and since hasfocused on the definition of the “family”. The traditional concept of the family ascomprising two parents and several children no longer has validity for many. Withthe increasing divorce rate many families have only one parent. Within couplestraditionally assigned gender roles are being challenged.

Homosexual couples have become increasingly outspoken and have called forrecognition of their relationships as family units. For perhaps the last ten years gaycouples have proclaimed their love in commitment ceremonies. They have recentlyhad some landmark legal wins. They have been allowed to enter the armed forces,take leave to care for sick family members and be beneficiaries of life protectioninsurance.24

In January of 1995 the Chief Justice of the Family Court of Australia, JusticeAlastair Nicholson, called for legal recognition of homosexual couples and theirchildren and for the Family Court to be given jurisdiction over property disputes.He indicated that it was not uncommon for him to hear custody disputes between ahomosexual and heterosexual parent. In some instances he had awarded custody toa homosexual parent.25

22 Mr Nick Greiner MLA, De Facto Relationships Bill (NSW), Second Reading Speech,Legislative Assembly, 24 October 1984, pp 2493-2494.

23 Mr Michael John MLA, Property Law (Amendment) Bill (Vic), Second Reading Speech,Legislative Assembly, 13 November, 1987, p 2513.

24 Ali Gripper, ‘Till death do us part’, Sydney Morning Herald, p 11.

25 ‘Equality for gay couples’, Sydney Morning Herald, 9 January 1995, p 12.


Neil Brown, a lecturer in Christian ethics at the Catholic Institute has urged that anyamendment to the legal definitions associated with the concept of the family shouldbe undertaken with great care. Although acknowledging that the changing socialconditions are putting stress on the traditional concept of the family it is still largelyaccepted as having its basis in a “committed heterosexual relationship”. He states:

The traditional family unit is a vulnerable social institution, still crucial to ourway of life. Although practice has changed, the ideal still retains substantialsupport even in the difficult circumstances of many contemporary families. Anyattempt to widen its definition to eliminate its heterosexual basis will render itunrecognisable and unserviceable for those who depend on it.

... The traditional notion of the family emerged out of a complex network ofbiological, cultural, economic and social needs and arrangements. It enshrines acollective wisdom concerning the potential contribution of both sexes to theproper nurturing and education of a child. It remains a common social ideal evengiven today’s less stable family relationships.26

The Family Law Act is grounded in this traditional perception of the family unit.The Family Court in the exercise of its jurisdiction is required to have regard to:

• the need to protect the institution of marriage as the union of a man and a womanto the exclusion of all others

• the need to give the widest possible protection and assistance to the family as thenatural and fundamental group unit of society.27

However, community attitudes have changed since the introduction of the FamilyLaw Act in 1975. Alternative family-like relationships are becoming more sociallyacceptable. Churches no longer play such an influential role as arbiters ofacceptable behaviour. The law is increasingly perceived as having a role to play inchanging community attitudes and determining appropriate values.

As our society has become more pluralistic and multicultural, greater emphasis isbeing placed on fairness and justice as the mainspring of law, rather than lawrepresenting the moral beliefs of any particular group.28

Those in favour of extension of the laws argue that legislation may strengthen ratherthan weaken the notion of the family.

It can be argued with greater credibility that the use of de facto relationships bythose seeking to avoid the responsibilities of marriage will be less when there areproper responsibilities of parties to de facto relationships.29

26 Neil Brown, ‘Churches must preserve the ideal of the ‘Family’, Sydney Morning Herald,

22 May 1995, p 13.

27 Family Law Act, s 43.

28 ACT Attorney-General’s Department, Domestic Relationships, Discussion Paper, 1993, p 1.


This in turn represents a concern for some that legislation may foist upon people theobligations and status of marriage that they were seeking to avoid by remaining in ade facto relationship.

3.2 PERCEPTIONS OF DE FACTO COHABITATION

In the 1970’s cohabitation was portrayed as a liberating experience freeing couplesfrom the constraints of marriage. Marriage was then viewed by the moreprogressive elements as oppressive, sexist and discriminatory. Cohabitation wasseen as freeing couples from restrictive conventions, traditional roles and moral-legislative obligations. It was argued that people should be free from obligationsthat they did not want to accept.

In the debate regarding the New South Wales De Facto Relationships Bill MrGreiner stated his opposition thus “… this legislation seeks to impose onindividuals a set of legal binds which the individual neither wants nor needs. Inmany cases, individuals have significantly chosen to avoid those binds.”30

Surveys conducted by Sotirios Sarantakos of the School of Humanities and SocialSciences at the Charles Sturt University showed that only a small percentage of thecouples surveyed cohabited because they were motivated by ideological groundssuch as freedom from the constraints of marriage.31 Experience has dispelled mythsthat living together is an egalitarian experience of sharing equally household tasks,promoting personal freedom and independence. Partners surveyed, in fact,perceived their relationship in much the same way as did married couples.

Research findings show that many cohabitants see each other as husband andwife, although they might not use these terms, and often wish to be seen as such bythe public ... they expect to be treated by the community in the same way husbandsand wives are treated, for instance in terms of the rights and obligations arisingfrom living together in a dyadic relationship 32

29 Brian Donovan, ‘De facto relationships and property adjustment - part II’, Australian FamilyLawyer 8(4) June 1993, pp 31-37.

30 Mr Nick Greiner MLA, p 2493.

31 Sotirios Sarantakos, ‘Unmarried cohabitation: options, limits and possibilities’, AustralianJournal of Marriage & Family, 1994, 15(3), pp 148-60.

32 Sarantakos, p 152.


Research has revealed that eventually most cohabitants marry. Cohabitation is seenas a preparatory step to marriage.33

3.3 STATISTICS AND TRENDS REGARDING DE FACTO RELATIONSHIPS

Statistics suggest that a significant proportion of de facto relationships are a preludeto marriage or remarriage. In the last 20 years there has been an increase in theproportion of couples who live in de facto relationships before marriage. In 1975about 16% of persons cohabited before marriage, compared with about 56% in1992.

The current trend is for couples to marry at an older age. The number of peopleaged 15-19 years at marriage has declined since the mid 1970’s. The figuressuggest that young people are much more pragmatic about relationships than theirparents and grandparents were, and are more cautious about committing themselvesto a relationship.34

The importance of religion in relation to marriage seems to be declining. Only 57%of couples chose to have religious weddings in 1994 compared to 82% 20 yearsago. About 40% of marriages are likely to end in divorce within 30 years.Remarriage rates are continuing to fall.35 Research by Australian NationalUniversity demographer Peter McDonald shows that the remarriage rate has halvedover the past two decades with the growing trend for divorced men and women tolive in de facto relationships.36

3.4 DE FACTO RELATIONSHIPS AND OTHER AREAS OF LAW

There are now very few areas of the law that make distinctions between de factoand de jure marriages. Oddly, family law is the last area in which the distinctionsare maintained. Many may be surprised to learn that the Family Law Act has alwaysrecognised the need, in determining maintenance or property applications in disputes

33 Sarantakos, p 157.

34 Farah Farouque, ‘Judge urges hand-over of de facto property powers’, Age, 12 October 1995,p 1.

35 Australian Bureau of Statistics, Marriages and Divorces, Australia 1994, Cat No 3310.0, pp9-16.

36 Bettina Arndt, ‘The second time around’, Sydney Morning Herald, 24 June 1996, p 15.


between married couples, to consider the financial responsibilities associated with defacto relationships that form after the marriage breakdown.37

At the federal level there are various laws where the distinction between de factoand de jure relationships has been extinguished.

• In 1990 changes were made to the Social Security Act 1947 omitting thedefinition of ‘de facto spouse’ and ‘married person’ and replacing them witha definition of ‘marriage-like relationship’. Guidelines were also introducedto determine the existence of such a relationship.

• Since 1984-85 the taxation department has treated de facto spouses in thesame way as married spouses for the purpose of dependent spouse rebatesand payment of the Medicare levy.

• The Commonwealth War Pensions Act 1984 awards benefits to de factospouses of deceased or invalided servicemen.

• The Child Support (Assessment) Act 1989 prescribes that children whoseparents separated on or after 1 October 1989 or were born after that dateare eligible for maintenance irrespective of the marital status of their parents.

• Worker’s Compensation and fatal accident legislation in all states allow defacto partners to claim payment after the death of or injury to their partner,provided they have lived in the relationship for a requisite number of years.

• • Anti-discrimination legislation at both federal and state levels recognise defacto relationships and prohibit discrimination in areas such as work,education and provision of services.

4. DE FACTO PROPERTY ISSUES UNDER THE CURRENT LAW

4.1 THE GENERAL OR COMMON LAW

Where there is no legislation in place property disputes between de facto couples aredecided according to the principles of property and equity law. The application ofthese principles is not influenced by the nature of the relationship between theparties. The relationships may be heterosexual or homosexual, the application ofthe principles will be the same. The rules applying to de facto couples areinterpreted by the Courts as being no different from the laws that would be appliedto strangers. These laws were developed in the context of commercial relations.For this reason they were not easily transferable or suited to the quite differentdomestic relations of men and women or same-sex couples.

37 Family Law Act, s 75(2)(m).


4.1.1 Remedies

The legal remedies applied in the resolution of de facto property disputes include:

• Contract38

• Trust39

• Quantum Meruit40

• Proprietory Estoppel41

• Restitution42

• Equitable Lien43

4.1.2 Disadvantages of reliance upon the common law to resolve de factoproperty disputes

As there is such a wide range of possible remedies for applicants, litigation ispotentially complex, lengthy and expensive. The drawbacks of applying thecommon law to de facto property disputes include:

• lack of predictability of results, as different principles are applied to differentfactual circumstances

• no account is taken of the non-financial contributions of the parties norallowance made for the future economic burden of raising children whichoften disadvantages the female partner

• no account is taken of a likelihood of a change in the financial situation ofeither party in the future by reason of superannuation payments or otherwise

38 Where the parties have entered into some type of agreement regarding distribution of propertyon the breakdown of their relationship.

39 A relationship whereby property is held by one person on behalf of or for the benefit ofanother.

40 A Quantum Meruit is the reasonable amount to be paid for services rendered or work done,when the price of such services or work is not fixed by contract.

41 Where a person makes a promise and another person believes this and acts upon it to his orher detriment, in the expectation that he or she will acquire an interest in property, then thatsecond person may have a cause of action against the first person. The court will refuse toallow the first person to deny that a beneficial interest has been created, where they haveactively or passively encouraged the other to act on their mistaken belief.

42 A remedy whereby a court can restore parties to the position they were in prior to atransaction.

43 Where a co-owner makes a contribution towards repaying a mortgage or repairing orimproving property in proceedings for the partition of the property the court may order therepayment of the value of the expenditure and secure that repayment by way of an equitablelien over the property.


• a lack of guidelines leading to reliance upon the discretion of judges and theexpertise of legal representatives

• high costs compelling couples to opt for out-of-court settlements

4.1.3 Agreements

It is increasingly common for couples who have entered into a cohabitationrelationship, or who are contemplating doing so, to enter into an agreement withtheir partner regarding their respective property entitlements in the event of theirseparation. For these agreements to be enforceable they must comply with therequirements of the general law of contract. If the agreement relates to land thenthe agreement must be in writing in accordance with the provisions of the PropertyLaw Act 1974 (Qld).44

4.1.4 Principles of Equitable Trusts

If a couple do not enter into such an agreement and their relationship breaks downthey must fall back on their position at common law. Under the common law,regard is only had as to whether the de facto applicant has a legal or recognisedequitable interest in the real property which was brought into or accumulated duringthe relationship. The person with formal legal title will generally be entitled to theproperty irrespective of whether another person has made direct or indirectcontributions to the acquisition of the property, unless a trust in favour of that otherperson can be established.

Until recent times a person could not establish that the other party held property intrust for them unless they could show that there was a common intention that theyobtain a beneficial interest in the property. This led to cases of injustice where aperson, despite having made substantial contributions to the acquisition of property,could not be found to hold a beneficial interest in the property. This was theposition of the law at the time of the introduction of the New South Wales De FactoRelationships Act 1984. (see discussion at 4.2). This position has been somewhatameliorated by new developments in the law.

In 1985 the High Court in the case of Muschinski45 declared a new type ofconstructive trust which was not dependent upon an intention of the parties. Thisnew type of constructive trust was extended further by the High Court in the case of

44 Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 11.

45 Muschinski v Dodds (1985) 160 CLR 583.


Baumgartner46 decided in 1987. The court decided that a constructive trust arosewhere it would be unconscionable for a party to refuse to recognise the existence ofan interest of the other party in the property. To establish a trust of this kind it isnecessary to establish:

• a long-term stable relationship;

• the acquisition of property for the purposes of that relationship;

• contributions by one partner which have enabled the other to acquire theproperty; and

• unconscionable conduct.47

In the recent Queensland case of Turner v Dunne Appeal No 196 of 1995, theCourt of Appeal of the Supreme Court of Queensland upheld the decision of thetrial judge apportioning property 60 percent to the man and 40 percent to thewoman. The couple had lived together for 30 years. The man (Dunne) had broughtmoney to the relationship and this was used to purchase a shop. The woman(Turner) worked in the shop and contributed to household expenses. The proceedsof the sale of the shop were used to purchase a house in the man’s name. It wasaccepted by the Court that Turner had contributed considerably to the acquisition ofthe property by her work in the shop and later in improving the property and hadbeen the primary homemaker. Baumgartner v Baumgartner was relied upon as theprinciple authority.48

Justice Pincus commented that there was no authority as to “whether contributionsother than those of a financial kind have to be taken into account whendetermining whether a trust should be imputed ...”. However, he concluded thatthe weight of authority appeared to suggest that taking non-financial contributionsinto account was a proper approach. This interpretation of recent authorities by theQueensland Court suggests that the law will recognise the non-financialcontributions of the primary home-maker and/or care-giver.

However, it would be wrong to believe all problems associated with the resolutionof property disputes between de facto couples have been eradicated. A courtdeciding a case one way, on the facts of a particular case, does not give rise to a

46 Baumgartner v Baumgartner (1987) 164 CLR 137.

47 The principles of Baumgartner have been applied to same sex couples. See Hartigan v WiddupNo 631 of 1991, unreported decision of the Supreme Court of the Australian Capital Territory.See also discussion in Rebecca Bailey-Harris, ‘Property disputes between de facto couples: isstatute the best solution?’, Australian Journal of Family Law, 5 (3), December 1991, p 236.

48 Dunne v Turner Appeal No 196 of 1995 Court of Appeal of the Supreme Court ofQueensland.


general rule applicable to all similar cases. Difficulties may still arise in thefollowing situations:

• where the contributions are not great enough to warrant expensive courtproceedings

• where the claim is based solely on homemaker/parent contributions.49

Parties still have no way of predicting how the court will quantify a share inproperty nor the recognition the court will give to their indirect financialcontributions.50 The court is not required to have regard to the future needs andobligations of a party or future earning capacities.

4.1.5 Right To Maintenance Under The Common Law

Under the common law there is no right to claim maintenance between de factopartners. This may cause particular hardship for the partner who has the coreresponsibility of a child or children of the relationship and cannot work or whosechances of employment have been adversely affected by the relationship.

4.2 LEGISLATION REGARDING DE FACTO RELATIONSHIPS

In those jurisdictions in which there is legislation regarding de facto relationships,that legislation generally confers power on courts to adjust the interests of parties inproperty held by both or either of them; to declare legal and equitable interests inproperty and give injunctive relief. However, an applicant may still apply forequitable relief under the common law in addition to the relief provided by statute.51

The Family Court may also exercise jurisdiction under the de facto relationshipslegislation by reason of the jurisdiction of courts cross-vesting legislation.52 The

49 Bryson v Bryant (1992) 16 Fam LR 112. In this case domestic contributions made solely forreasons of love and affection alone were considered insufficient to give rise to a constructivetrust.

50 It has been noted that 50% is rarely the quantum awarded. See Rebecca Bailey-Harris,‘Property disputes between de facto couples’, p 225.

51 Domestic Relationships Act 1994 (ACT), s 5; De Facto Relationships Act 1991 (NT), ss 52,13(2); De Facto Relationships Act 1984 (NSW), ss 7, 14(2); Property Law Act 1958 (Vic)ss 277,279(2); De Facto Relationships Act 1995 (SA), s 16.

52 Jurisdiction of Courts (Cross-vesting) Acts of States and Commonwealth, dated 1987 in eachjurisdiction.


cross-vesting legislation vests state courts with federal jurisdiction and federalcourts with state jurisdiction and allows matters to be transferred between state andfederal courts. The cross-vesting legislation enables the Family Court to exercisejurisdiction in property matters when proceedings have been instituted primarily inrelation to children. However, when hearing such matters the Family Court mustexercise the relevant State law.53 If there is no specific legislation then the courtmust have regard to the common law. If the issues relating to children are resolved,and outstanding property issues remain, the matter must be sent back to the relevantState court.

4.2.1 New South Wales

As a result of the New South Wales Law Reform Commission Report on de factorelationships in 1983, the New South Wales legislature enacted the De FactoRelationships Act 1984.54 This was the first legislation in Australia dealing with defacto relationships which allowed partners to seek a ruling from the courts alteringtheir property rights. It was considered a very progressive piece of legislation at thetime. It has been used as a model for drafting de facto legislation in other states.

Under the Act de facto relationship is defined to mean “the relationship betweende facto partners, being the relationship of living or having lived together ashusband and wife on a bona fide domestic basis although not married to eachother”. This definition was adopted from that used in the Commonwealth SocialSecurity Act 1947.

4.2.2 Victoria

In Victoria an attempt was made to pass a De Facto Relationships Bill in 1986 butthe bill was withdrawn. Provisions regarding de facto relationships were laterinserted into the Property Law Act of 1958 by the Property Law (Amendment) Act1987. These provisions were limited to allowing a de facto partner to apply for analteration of an interest in real property.55 Under the Act the definition of de factorelationship is similar to that of the NSW Act.

In contrast to the New South Wales Act there was no provision included in the Actto allow the court to make orders for maintenance of a former de facto partner or

53 Jurisdiction of Courts (Cross-vesting) Act, s 11.

54 NSWLRC Report, 1993.

55 Property Law Act of 1958, s 279.


adjustments of interests in personal property. Unlike the NSW legislation whichempowered a court to recognise and enforce an agreement entered into between theparties, the Victorian courts were only permitted to take a written agreement intoaccount.56

4.2.3 Northern Territory

In 1991 the Northern Territory legislature passed the De Facto Relationships Act1991. Like the Victorian legislation this Act is based largely on the New SouthWales Act. The definition of de facto relationship is almost exactly the same asthat for the NSW Act.

4.2.4 Australian Capital Territory

In 1994 the ACT government passed the Domestic Relationships Act 1994. ThisAct allows a person to seek an adjustment of ownership of property where theyhave provided personal and financial support of a domestic nature to anotherperson.

The term domestic relationship is defined to mean

… a personal relationship (other than a legal marriage) between 2 adults inwhich 1 provides personal or financial commitment and support of a domesticnature for the material benefit of the other, and includes a de facto marriage.

Sexual preferences are not a consideration in determining whether a domesticrelationship exists. In fact a person does not need to have a sexual relationship withanother to be in a domestic relationship. It is not even necessary for them to residetogether under the one roof. The legislation would cover carers and those they carefor.57

4.2.5 South Australia

South Australia is the latest state to introduce legislation for the resolution ofde facto property disputes. The De Facto Relationships Act 1996 was assented toon 1 August 1996 but as at 13 November 1996 has not yet been proclaimed intoforce. The definition of de facto relationship has the same meaning as that

56 Property Law Act, s 285(1)(c).

57 Domestic Relationships Act, s 3(2)


contained in the New South Wales legislation. The Act makes no provision for acourt to order a partner to pay the other maintenance.

4.2.6 Features of the Legislation

Same Sex Relationships

Same sex relationships are not covered by the New South Wales, Victorian,Northern Territory or South Australian legislation. The definitions of de factorelationship clearly exclude them. In these States property disputes between samesex partners must be dealt with under the common law. The ACT Act is anexception in that it applies not only to those living in traditional de factorelationships but to same sex couples. Apart from this it is similar in many respectsto the legislation in existence in the other states discussed.

Prerequisites For Making An Application

Under the NSW, Northern Territory and Victorian legislation a court is entitled tomake an adjustment or maintenance order if the de facto partners have livedtogether in the relationship for two years or more.58 This period was chosen:

Because it is not considered desirable that a legal regime of rights andobligations comparable to that of marriage should be imposed upon people assoon as they enter into a de facto relationship … The requirement of aspecified period will guard against the possibility of a substantial number ofunmeritorious claims reaching the courts.59

Proceedings must be initiated within 2 years of the end of the relationship.60

However, to prevent injustice, a court can make an order when the couple havebeen together for a lesser time if:

(a) there is a child of the relationship; or

(b) the applicant has made a substantial contribution; or

(c) the applicant has the care of a child of the other partner

The ACT Act is exactly the same in its requirements as to the length of a domesticrelationship and the time limit for initiating proceedings.61

58 s 281, Vic; s 16, NT; s 17, NSW.

59 Hon David Paul Landa MLA, De Facto Relationships Bill (NSW), Second Reading Speech,Legislative Assembly, 17 October 1984, p 2002.

60 s 282, Vic; s 16, NT; s 17, NSW.


The South Australian legislation requires that the de facto relationship has existedfor three years or that there is a child of the relationship for a de facto partner to beable to apply to the court for a division of property. The application must be madewithin one year of the end of the relationship.

Property Orders

New South Wales

Under the NSW Act upon the breakdown of a de facto relationship a partner isentitled to apply for an adjustment of property interests but this right is much morelimited than those given to married couples under the Family Law Act. TheVictorian and Northern Territory legislation was modelled on the NSW legislationand contains similar provisions in relation to property orders.

Under the NSW Act Property is defined to mean

… real and personal property and any estate or interest (whether a present, futureor contingent estate or interest) in real or personal property, and money, and anydebt, and any cause or action for damages (including damages for personalinjury), and any other chose in action, and any right with respect to property.

61 ss 12 and 13.


The legislation stipulates that the court may make an order adjusting interests of thepartners in property as seems just and equitable having regard to:

1) the financial and non-financial contributions made directly or indirectly toacquiring, conserving or improving of property; and

2) contributions including those made in the capacity of homemaker or parentto the welfare of the family.62

Although the legislation provides that both financial and non-financial contributionsshould be taken into consideration it does not give any guidance as to the weight tobe given to these different types of contributions. Until recently manycommentators have been critical of determinations of the courts on the basis that therole of homemaker and parent has been undervalued. In the case of D v McA, theplaintiff, a qualified nurse, gave up work to care for children within the relationshipand was subsequently unable to return to her profession. She received $12,000 andsome maintenance.63 In the case of Dwyer v Kaljo although the plaintiff madesubstantial contributions by way of care for children and domestic tasks and theman’s assets were valued at $11 million, she received only $50,000.64

While the courts can consider the contributions made by the de facto partners theyare not entitled to take into consideration many of the factors which are enunciatedin section 79 of the Family Law Act. According to authorities section 79 has twoessential components. The first is the contribution or the retrospective element andthe second is the future need or prospective element.65 The Family Law Actrecognises the disparity that can exist between parties’ earning capacities, needs andfinancial resources. The NSW law does not.66

62 s 20, NSW. Equivalent provisions exist in Victoria and the Northern Territory. (s 285, Vic; s18, NT)

63 D v McA (1986) 11 Fam LR 214.

64 Dwyer v Kaljo (1987) 11 Fam LR 785. It must be noted that in other decisions under the stateActs substantial recognition has been given to the contribution of homemakers. Where judgesexercise discretionary powers there will always be discrepancies between decisions. SeeRebecca Bailey-Harris, ‘Property disputes between de facto couples’, pp 226 & 234. TheFamily Law Act has also been subject to criticism on the grounds of lack of predictability.

65 Brian Donovan, ‘De facto relationships and property adjustment - part 1’, Australian FamilyLawyer, 8(2), June 1993, pp 31-37.

66 It has been contended that the wide definitions in the NSW Act of ‘property’ and ‘financialresources’ enable, to a limited extent, disparities in future financial positions to be taken intoaccount. ‘Financial resources’ is defined to include superannuation entitlements and


Early judicial interpretations of the Act showed an inclination to emphasise thedifferences between the Family Law Act and the De Facto Relationships Act ratherthan highlight the similarities. Judges noted that it was not the intention ofParliament to elevate the status of a de facto relationship to that of a marriage. Forthis reason and given the differences between the provisions of the two Acts thedecisions of the Family Law Court could not be adopted and applied in determiningcases under the de facto relationship legislation.67

The early cases generally adopted the four step procedure or adequatecompensation approach set out by Justice Powell in D v McK.68 It would seem thatthis approach effectively limited relief as applicants had to show that theircontributions outweighed any benefit they received from the cohabitation. Thebenefits considered included accommodation, travel, clothing and lifestyle generally.Homemaker contributions were frequently ruled to have been adequatelycompensated.

With the advent of the case of Baumgartner (See section 4.1.4 of the Bulletin) it haseven been suggested that the general law principles would provide more realisticrelief than the New South Wales statute as interpreted by the NSW courts. BrianDonovan, a Sydney barrister, has summarised the criticisms directed at the approachadopted in New South Wales:

The NSW approach reflects the belief that those in de facto relationships shouldget less relief than those in the married state because the de facto state is morallysomething less than the married state.

The NSW approach has too strict an emphasis on property and money and reflectsthe old English attitudes to family law of the 1960s and 1970s.

The NSW approach presumes an equality of the parties and consequently afreedom of choice which frequently is not present.69

entitlements under discretionary trusts. See Rebecca Bailey-Harris, ‘Property disputesbetween de facto couples’, p 231.

67 Roy v Sturgeon (1986) 11 NSWLR 454.

68 D v McK (1986) DFC 95-030 p 75356. The four steps were:1. identification and valuation of the assets of the partners;2. identification of the contributions made by each partner to the acquisition of these

assets;3. determination of whether the contributions of the applicant have already been

acknowledged and compensated for;4. determining an appropriate order given the applicant’s contributions.

69 Brian Donovan QC, De facto relationships and property adjustment - part II, AustralianFamily Lawyer 8(4), June 1993 p 35.


The Court later took some tentative steps away from this approach towards theapproach of the Family Court, however, it was the judgment of the Court of Appealin Dwyer v Kaljo (1992) DFC 95-127 which dramatically changed the approach ofthe Courts. The Court determined that it was not limited under s20 (1) to providingfor adequate compensation of the applicant but should make an adjustment of theproperty rights of the parties as would seem just and equitable.70

Australian Capital Territory

The ACT Act provides that in making an order adjusting interests in property thecourt can have regard to:

(a) the nature and duration of the relationship;(b) the financial or non-financial contribution made directly or indirectly by the

parties to the acquisition, conservation or improvement of any property orfinancial resources;

(c) contributions made by the parties to the welfare of the parties or any child;(d) those matters referred to in section 19(2); and(e) any other relevant considerations.71

The matters referred to in section 19(2) are:

(a) the income, property and financial resources of each party;

(b) the physical and mental capacity of each party for appropriate gainfulemployment;

(c) the financial needs and obligations of each party;

(d) the responsibilities of either party to support any other person;

(e) the terms of any order made with respect to property; and

(f) any payments made pursuant to an order in respect of the maintenance of achild.

This provides greater protection to de facto partners than the NSW Act in that itincludes the needs and earning capacity considerations that are included in theFamily Law Act.72

70 This approach is not without its critics. One commentator has criticised this decision on thebasis that it adopted criteria for determination of property issues that are not set out in thestatute and which are dangerously unlimited in scope. See Dorothy Kovacs, ‘A dozen ways(and more) to lose a de facto property case’, Law Institute Journal, August 1994, pp 726-7.

71 Domestic Relationships Act, s 15.

72 Family Law Act, s 79 (4) and s 75 (2).


Maintenance Orders

Under the New South Wales, Northern Territory and ACT legislation a court canonly make an order for spousal maintenance if either of the following is satisfied —

a) the partner cannot support himself or herself adequately because he or shehas the care and control of the child of the relationship or child of the otherpartner where the child is under the age of 12 years or under 16 years ifphysically or mentally handicapped: or

b) the partner cannot support himself or herself adequately because theirearning capacity has been adversely affected by the relationship; and

1) the order would increase the applicant's earning capacity by enabling himor her to undertake a course or program of training or education; and

2) the court considers it reasonable to make the maintenance order.73

In determining whether to make an order for maintenance the Acts stipulate thefollowing matters that the court can have regard to:

• the income, property and financial resources of each de facto partner and thephysical and mental capacity of each partner for gainful employment;

• the financial needs and obligations of each de facto partner;

• the responsibilities of either partner to support another person;

• the terms of any property orders made by the court; and

• any maintenance payments made for a child in the care of the partner seekingmaintenance.

In contrast the Family Law Act allows the following matters to be considered:

• the age and state of health of each of the parties;

• the care and control of a child of the marriage under 18 years;

• a standard of living that in all the circumstances of separation is reasonable;

• the extent to which the payment of maintenance to a party would increasethe earning capacity of that party;

• the extent to which the party whose maintenance is under consideration hascontributed to the income, earning capacity, property and financial resourcesof the other party;

• the duration of the relationship and extent to which it has affected theearning capacity of the party whose maintenance is under consideration;

73 s 27, NSW; s 26, NT.


• the need to protect the party who wishes to continue that party’s role asparent;

• if either party has begun cohabiting with another person after separation thefinancial circumstances relating to that cohabitation; and

• any fact or circumstances which, in the opinion of the court, the justice ofthe case requires to be taken into account.

Unlike the Family Law Act, where there is no restriction on the period for whichspousal maintenance may be ordered, the NSW, Northern Territory and ACTlegislation imposes limitations. Pursuant to the NSW and ACT legislation if thereason for the order is because the other partner has the care and control of a childthen the maintenance order can only last until the child reaches 12 years of age, or16 years of age if the child is mentally or physically handicapped. The NorthernTerritory legislation permits the order to last until the child is 18 years of age. If thereason for the order was that the partner’s earning capacity had been adverselyaffected then the order can only last up to 3 years after the date of the order or 4years from the date on which the relationship ended whichever is the shorter.74 TheVictorian and South Australian legislation make no provision for maintenanceorders.

Financial Agreements

The legislation of New South Wales, Northern Territory, ACT and South Australiaallows de facto partners to enter into financial agreements either before or duringtheir relationships or at the end of the relationship. These agreements will besubject to the ordinary rules of contract.75 The NSW and Northern Territory Actsdifferentiate between cohabitation agreements and separation agreements.76 TheVictorian legislation makes no provision for financial agreements.

The NSW Act sets out detailed certification requirements which must be satisfiedbefore the financial agreement will be binding on the parties.77 The Court must besatisfied that each partner was furnished with a certificate by their solicitor before

74 s 22(2), ACT; s 30, NSW.

75 s 46, NSW; s 46, NT; s 32, ACT; s 5, SA.

76 A cohabitation agreement is made in contemplation of living together or while still livingtogether. Separation agreements contemplate separation or are consequent upon it.

77 s 47, NSW.


the agreement was signed by them stating that they were advised of the followingmatters:

• the effect of the agreement on their right to apply for a financial adjustmentunder Part III of the Act;

• whether or not it was to their financial advantage to enter the agreement;

• whether or not it was prudent for them to enter the agreement; and

• whether or not the agreement was fair and reasonable in all foreseeablecircumstances.

These have been criticised as being far too onerous and would effectively mean thatmost de facto couples would not have the financial resources to draw up suchagreements.78

For an agreement to be binding on a court in the Northern Territory all that isnecessary is for the agreement to be in writing and signed by the party against whoit is sought to be enforced. An agreement can be set aside where to enforce itwould lead to grave injustice or where circumstances have changed so as to make itimpractical to be carried out.79

Under the South Australian legislation the only requirements for an agreement arethat it be in writing and signed by both partners.80 The Act allows for certificatedagreements. An agreement is a certificated agreement if it stipulates that the partyhas warranted that they have disclosed all relevant assets to the other and theirsignature to the warrant is attested by their respective lawyer’s certificate.81

Mediation and Arbitration

Under the ACT legislation the Registrar must advise parties to proceedings aboutany mediation and arbitration facilities. The Court and legal representatives have aduty to allow the parties to settle the matters in dispute and to encourage parties toseek the assistance of mediation and arbitration. A court may refer matters indispute to a mediator or arbitrator.82

78 QLRC Report, 1993, p 28.

79 s 46, NT.

80 s 5(2), SA.

81 s 3, SA.

82 ss 6, 7, 8, ACT.


There is no provision for mediation or arbitration under the NSW, Victorian,Northern Territory or South Australian legislation.

5. RECOMMENDATIONS FOR CHANGE

5.1 ISSUES

An examination of the problems associated with the current legal position of defacto couples raises many dilemmas for those who seek their resolution. ProfessorBailey-Harris, Foundation Dean of Flinders University Law School has identified thefollowing policy issues that must be addressed:

• should the focus of legislation be on the relationship or economicconsequences of a relationship?

• which de facto relationships should be entitled to the law’s protection?

• should different types of de facto relationships be given equal protection?

• should the protection afforded to de facto relationships be equal to thatafforded to married couples?

• should there be a uniform de facto law across Australia?

• • should powers regarding de facto relationships be referred to theCommonwealth?83

5.2 QUEENSLAND

Lawyers and commentators have been advocating changes to the laws ofQueensland to accommodate de facto relationships for some time. In 1991Margaret White, then Master of the Supreme Court of Queensland, stated that:

If one accepts that a major task of the law is to adjust relations and order conductso as to give the most effect to the whole scheme of expectations of man andwoman in civilised society with the minimum of friction and waste, then a reviewof the law in Queensland with respect to defacto relationships (and other domesticrelationships) is well overdue.84

83 Rebecca Bailey-Harris, ‘De facto relationships: Searching for justice nationwide’, Reform,December 1993, No 66, pp 27-29.

84 White, p 1.


Initially the Queensland Law Reform Commission issued a Discussion Paper inOctober 1991 called Shared Property which endorsed consideration of extendinglegislation to property disputes involving non-marriage-like domestic relationships.However, upon receiving submissions in response to the paper it modified itsposition and limited its consideration to de facto relationships only.

In its Working Paper on de facto relationships published in September 1992 itrecommended the introduction of legislation to assist the resolution of disputesbetween de facto couples, be they heterosexual or same sex couples. In its finalreport, published in June 1993, the QLRC discussed the appropriate court in whichde facto property matters should be heard and the provisions of proposed modellegislation. The major recommendations are summarised below.

Appropriate Court

The QLRC recommended the Family Court as the most suitable forum in which tohear disputes between de facto couples.

The Family Court provides the following advantages:

• Expertise in resolution of property and maintenance matters

• Speed of resolution due to well developed case management

• Dispute resolution conference to avoid some matters going to trial

• Familiarity of family law practitioners with court procedures

• Predictability of outcomes regarding distribution of property.

Proposed Uniform Legislation

To enable the Family Court to handle de facto relationship matters State powersaffecting de facto couples would have to be conferred upon the Commonwealth.Should this option be adopted (the Commission noted that this would be a politicaldecision) then the Commission urged that the uniform legislation as proposed in theReport be adopted by all jurisdictions.85

Before drafting the proposed legislation the Commission considered the NSWDe Facto Relationships Act and the NSW case law. The proposed legislation wasdrafted with a view to overcoming some of the defects in the NSW legislationrevealed by the case law. The major provisions of the proposed legislation arediscussed here.

85 QLRC Report 1993, p 5.


Meaning Of “De Facto Relationship”

In the proposed legislation the term de facto relationship is used to mean a

… relationship between 2 persons (whether of a different or the same gender)who, although they are not legally married to each other, live in a relationshiplike the relationship between a married couple.

The definition is essentially the same as the definitions included in current legislationin NSW, Victoria, South Australia and the Northern Territory with the importantvariation that it is gender neutral. The definition makes it clear that the legislationwould cover heterosexual and same-sex couples. The Commission noted that inextending coverage to same-sex couples it had regard to “changing legislativeattitudes concerning homosexual relationships”.86

The Commission raised the following considerations for extension of coverage to alltypes of de facto couples:

• sexual relations between consenting adult males are no longer unlawful;

• the Anti-Discrimination Act 1991 (Qld) prohibits discrimination against aperson on the grounds of sexual activity87;

• homosexual couples unlike heterosexual couples have no choice undercurrent laws about whether they marry or not;

• deficiencies in the common law.88

Cohabitation and Separation Agreements

Under the proposed legislation the principles of contract law would continue toapply to cohabitation and separation agreements. An agreement would be bindingon the parties if the agreement is in writing, is signed by the partners, is witnessedby a Justice of the Peace or Solicitor, and contains a statement of all significantproperty, financial resources and liabilities of each partner. The Court may set asidesuch an agreement if enforcing the agreement would cause grave injustice, if it is nolonger practicable for it to be enforced or if the partners have revoked a term of theagreement in writing or by conduct.

The requirement that an agreement be witnessed by a JP or solicitor and provide fulldisclosure might deter de facto couples from entering into such agreements.

86 QLRC Report 1993, pp 11-12.

87 s 7(1)(a).



The requirement does, however, fall short of the requirements for disclosure underthe Family Law Act whereby parties are required to disclose their full ‘financialcircumstances’ in a statement or affidavit.

The recommended power of the court to vary agreements is much wider than thatallowed under the NSW legislation.89 This follows from the less stringentrequirements for entry into these types of agreements.

Prerequisites For Property Adjustment And Maintenance Proceedings

The Queensland Law Reform Commission recommended that a court may make aproperty adjustment or maintenance order in the following circumstances:

• if the de facto partners have lived together in a de facto relationship for 2years;

• if there is a child of the de facto partners under 18; or

• if the applicant partner has made substantial financial contributions orcontributions to family welfare, and failure to make an order would result inserious injustice to that partner.

A child of the de facto partners would include a child treated by either partner as achild of the relationship who is ordinarily part of the household. The scope of theterm would be somewhat wider than in other jurisdictions.

A court could only make a property adjustment or maintenance order in favour of aparty if the party has disclosed the party’s financial circumstances. This reflects theposition under the Family Law Act.90 There is no such requirement in otherjurisdictions. The Commission expressed its view that disclosure is essential toensure that a just and equitable order is made.91

Property Orders

Before the court could make a property order the parties must have attended acompulsory conference in an attempt to settle the dispute. The requirement for acompulsory conference is modelled on section 79(9) of the Family Law Act. Defacto legislation in other jurisdictions has not included such a requirement. The

89 s 49, NSW.

90 Order 17 Family Law Rules.



Commission concluded that such a requirement would be conducive to a speedy andultimately less costly resolution of disputes.92

The matters to be considered by the Court closely reflect those provided for underthe Family Law Act. The Queensland Law Reform Commission considered thedecisions of the Courts pursuant to the NSW legislation. It noted the inadequaciesrevealed by the interpretation of the NSW legislation and the resultant inequity topartners whose contributions were made predominantly in the role of homemaker.The Commission noted the emerging trend for the courts to consider factors notcontained in the legislation. It recommended that to avoid the problems in NSW theproposed Queensland legislation should more closely reflect the relevant provisionsof the Family Law Act.

Maintenance

The Queensland Law Reform Commission considered whether it was appropriatefor de facto legislation to confer a maintenance entitlement. It concluded that itshould, on the basis that grave injustice would be likely to occur if it did not. Itnoted that a provision for maintenance was necessary to prevent injustice to apartner who during the course of a relationship adopted the role of primary home-maker while the other pursued a career.93

The Commission viewed the restrictions on maintenance available under the NewSouth Wales and Northern Territory legislation as far too severe.94

Under the provisions of the draft legislation, before a court may make an order forone partner to pay the other maintenance, the court must be satisfied the partner isunable to support themselves. This inability must have arisen out of circumstancesconnected with the de facto relationship. This requirement has no equivalent inother legislation.95 In determining the amount of maintenance to be paid the Courtmust give consideration to matters which closely reflect those matters that must beconsidered by the Family Court.96 (See discussion at 4.3.6 Maintenance Orders).

Maintenance orders for partners would cease on the death, marriage orcommencement of a new de facto relationship by the partner. A person in receipt of




95 QLRC Report 1993, p 78-81.



maintenance must notify the former partner paying maintenance promptly and inwriting if they enter into a new relationship. If a de facto partner who is payingmaintenance suspects that the other partner has entered into another de factorelationship and has not notified them, they can apply to the court for themaintenance order to be discharged.97

A partner who is the subject of a maintenance order may apply to the court for avariation or discharge of the order where the circumstances of either party havechanged, or the cost of living has changed, justifying such a variation. If the orderwas made by consent of the parties then it may be varied if material facts werewithheld or were false.98

Declaration of Property Interests

A court may declare the existing title or rights that a de facto partner or anotherparty may have in relation to property.

Mediation and Arbitration

The Commission considered the provisions on mediation and arbitration insertedinto the Family Law Act in 1991. The Commission concluded that alternativedispute resolution provisions were as pertinent for de facto couples as for marriedcouples. The draft legislation includes provisions for mediation based on those inthe Family Law Act.99 This provision reflects an emerging theme in family lawreform that parties should be encouraged to resolve disputes between themselveswithout judicial involvement.100

Under the draft legislation the Registrar of the court is required to advise peopleabout the facilities available for mediation and arbitration.101 Mediation is availableto parties before or after the proceedings have begun. Parties may arrange forprivate arbitration of the dispute or the court may order arbitration. An award made

97 QLRC Report 1993, p 89-92.

98 QLRC Report 1993, p 92-93.


100 Australia, Department of the Parliamentary Library, Parliamentary Research ServiceBackground Paper, Australian Family Law: Some Current Issues, Background Paper No 32,1994/95, p 10.

101 Under the recently amended Part III of the Family Law Act practitioners now have a legalduty to inform their clients of the availability of counselling, mediation and arbitration prior toengaging in court action.


by an arbitrator may be registered by the Court and will have the same effect as anorder of the Court. A party may apply for review of an award. Informationobtained during mediation or arbitration must be kept confidential.

Courts

Under the proposed legislation the Supreme, District and Magistrates Court aregiven jurisdiction to hear and determine matters pursuant to the Act according totheir monetary value. The Court may allow a person to intervene in proceedingscommenced under the legislation and grant injunctions in the absence of parties incases of urgency.

5.3 COMMONWEALTH

In 1987 the Advisory Committee on the Distribution of Powers recommended in itsreport to the Constitutional Commission that Commonwealth power should beextended to cover property and financial disputes between parties to de factorelationships. In its report the Committee commented, when discussing the basis forthe recommendation, that

… one of the underlying reasons for the difficulties … [was] the understandableinability of the framers of the Constitution to foresee the immense social andtechnological … changes that have occurred. … These changes have resulted inthe social acceptance of different kinds of family units which are not based onmarriage.102

The Constitutional Commission went on to recommend that the Federal Parliamentbe given legislative powers over property and financial rights between persons whoare or were formerly in a de facto relationship The Commission reached theconclusion that:

… it is artificial to decide issues arising between de facto partners in the FamilyCourt under Federal law if they involve the custody, guardianship or maintenanceof, or access to their children and in State courts under State law if they involvetheir property. The consequences of family breakdown should be dealt with underthe one law in the one jurisdiction. This is particularly important in view of thedifficulty of separating property and financial issues which may arise between

102 Australia, Constitutional Commission, Report of the Advisory Committee to the ConstitutionalCommission, Distribution of Powers, 6 June 1987, Canberra Publishing and Printing Co, p53.


de facto partners from the issue of maintenance of any child who is or had beenpart of their family.103

In 1991 a Joint Select Committee was established to inquire into the operation andinterpretation of the Family Law Act. Under its terms of reference the Committeewas required to consider whether the Family Law Act should be amended toinclude the jurisdiction to decide property disputes between de facto couples. TheCommittee tabled its final report in November 1992.104

The Committee was of the view that the definition of de facto relationshipincluded in the Family Law Act in 1991, following the referral of powers by thestates regarding custody, maintenance of, and access to ex nuptial children, wouldbe adequate for proceedings between de facto couples. The Committee referred toevidence given by the Chief Justice that jurisdiction regarding de facto couplesshould be confined to relationships between men and women.

The Committee emphasised that:

• it did not wish to devalue the concept of marriage and did not equate ade facto relationship with marriage

• it was not concerned with the morality of de facto relationships but ratherwas concerned to see that people are treated equally and fairly before thelaw.

The majority of submissions to the inquiry were in favour of extending the FamilyLaw Act to cover de facto relationships. The reasons given for favouring thisapproach were:

• to avoid injustice and to bring uniformity to the Australian law

• to ensure the resolution of disputes by an expert body

• to increase the certainty of outcome of such disputes

• to reduce the time and cost of litigation.

The arguments against inclusion of de facto property disputes in the Family Law Actwere:

• that a de facto relationship should not be equated to marriage

• that since people in de facto relationships chose not to make a legalcommitment they should not be provided with protection under the law

103 Australia, Constitutional Committee, Final Report of the Constitutional Commission, Vol 2,Canberra, AGPS. 1988, para 10.228, p 686.

104 Australia, Report of Joint Select Committee on Certain Aspects of the Operation andInterpretation of the Family Law Act, 1992.


• that some people had chosen a de facto relationship to avoid the provisionsof the Family Law Act.105

The Committee indicated that in reaching its final recommendations it had:

… grappled with the issue of whether or not the Family Court should havejurisdiction to deal with property disputes between de facto partners and if so, inwhat way that jurisdiction should be effected. The issue presented something of aconundrum for the Committee, given the commitment expressed in the Family LawAct to support the concept of marriage.106

It concluded however that recognition of de facto relationships was not inconsistentwith the current statutory recognition of the importance of marriage.

The Committee recommended that property disputes resulting from the breakdownof de facto relationships would be best dealt with by the Family Court. To this endthe Commonwealth Government should seek reference of power from the States.This recommendation was prompted by the proliferation of state legislationregarding de facto couples, the fact that the Family Court already has power to dealwith issues relating to children of de facto couples and has the requisite expertise inthis area, and the approach adopted by the courts in relation to cross-vesting laws.It was proposed that Commonwealth legislation be enacted to bring about this resultrather than amendment to the Family Law Act.107

At the meeting of the Standing Committee of Attorneys-General in June 1993 it wasrecommended that the Commonwealth seek reference of powers from the States inrelation to jurisdiction of de facto property disputes. It was recommended thatthere be no amendment to the Family Law Act regarding de facto relationships. InDecember 1993 the Commonwealth Attorney-General announced that theCommonwealth was seeking referral of powers on de facto legislation.108

105 Report of Joint Select Committee, 1992, pp 263-264.

106 Report of Joint Select Committee, 1992, p 271.

107 Report of Joint Select Committee, 1992, p 271.

108 Hon Michael Lavarch MP, ‘A new era in family law’, Ministerial Document ServiceNo 103/93-94, 20 December 1993, p 3939.


5.4 REFERRAL OF POWERS TO THE COMMONWEALTH

5.4.1 Commonwealth Powers Amendment Bill 1995

In October 1995 the Hon Matt Foley, then Minister for Justice and Attorney-General introduced the Commonwealth Powers Amendment Bill 1995 into theQueensland Parliament. This Bill lapsed with the change of government in February1996.

The purpose of the Bill was to refer to the Commonwealth Parliament, powers tolegislate in relation to the resolution of disputes concerning financial mattersbetween de facto partners. Under the Bill the term de facto relationship wasdefined to mean “the relationship between 2 persons who, although they are notlegally married to each other, live in a relationship like the relationship between alegally married couple.” The definition did not make it clear whether it applied tosame-sex couples or not. The use of the word “persons” suggested it could extendto same-sex couples.109 The then Federal Attorney-General, the Hon MichaelLavarch indicated at the time that same-sex couples would have to continue to usestate laws to settle property disputes.110

The term de facto partner was defined as “a person who lives, proposes to live orlived in a de facto relationship”. The words “proposes to live” were included toensure that the Bill was wide enough in scope to cover the equivalents of pre-marital agreements.111

In the Explanatory Notes to the lapsed Bill, reference was made to the possiblealternative approaches available to address the current problems encountered byde facto couples seeking resolution of property disputes. These are:

• referral of powers to the Commonwealth

• use of the Standing Committee of Attorneys-General (SCAG) to seekuniform laws

• enactment of specific Queensland legislation.

109 It was not intended that the definition extend to same-sex couples. The Government intendedto amend the definition to clarify this area of uncertainty. Telephone conversation with anofficer of the Division of Policy and Legislation, Department of the Attorney-General,22 October 1996.

110 ‘Settlements made easier’, Courier-Mail, 11 October 1995, p 11.

111 It was anticipated that the Family Law Reform Bill would give greater scope to pre-maritalagreements. Telephone conversation with officer of the Division of Policy and Legislation,Department of Attorney-General, 22 October 1996.


The notes stated that all of these approaches were considered. In his SecondReading Speech the then Minister indicated that the option of referral of powerswas chosen because of the following reasons:

A referral would ultimately result in the conferring of jurisdiction on theFamily Court for the handling of de facto disputes.

There is wide support for bringing de facto property cases under that court’sprocedures as the court currently deals with child custody and access issuesinvolving de facto couples.

Family law practitioners are familiar with the procedures of the Family Courtand have found them to work satisfactorily.

… considerable saving to litigants as the Family Court has well-developedcase management procedures and a wealth of experience with its specialistjudges, conciliation registrars and mediators.

… a more predictable approach to judicial interpretation, leading to morelikely negotiations between parties to settle their disputes.

The Minister also indicated that the decision to refer powers had been taken bearingin mind the major reforms initiated by the Commonwealth regarding the Family LawAct.

The aim of these changes (now legislated)112 was to alter the focus of the FamilyLaw Act from litigation to mediation designed to encourage parties to developsolutions to their property and child custody disputes. The reforms were intendedto make the family law system cheaper, simpler and fairer.

5.4.2 Proposals of Coalition Government Regarding De Facto PropertyDisputes

In May 1996 the Queensland Attorney-General the Hon Denver Beanland MLA wasreported as saying that legislation regarding property settlements of de facto coupleswould be introduced within a year.113 Mr Beanland indicated that he was assessingwhether it would be preferable to refer powers to the Commonwealth or enactQueensland legislation. Since this announcement Government back-bencher MrFrank Carroll MLA is reported to have expressed concern about referral of powersto the Commonwealth. Reports have indicated that his concern is that such adecision would undermine the family unit and overstretch the resources of the

112 The Family Law Reform Act 1995 (Cth).

113 Amanda O’Chee, ‘De facto law under review’, Courier-Mail, 3 May 1996, p 10.


Family Court by allowing de facto and same-sex couples access to the Court.114 MrCarroll has presented the Parliament with a petition requesting the House to rejectthe Commonwealth Powers (Amendment) Bill or similar legislation.115

5.4.3 Disadvantages And Advantages Of Referral

Under section 51(xxxvii) of the Constitution, the Commonwealth Parliament isgiven power over matters referred to the Commonwealth by the State Parliaments.The power is not often used.116 Queensland in 1950, and Tasmania in 1952, referredthe matter of air transport to the Federal Parliament. Between 1986 and 1990 fivestates, including Queensland, referred power regarding ex nuptial children to theFederal Parliament.

Disadvantages

• A reference of powers may be revoked by a State generally or by reason ofthe way in which it may be framed.

• The Commonwealth may delay legislating until most or all of the states havereferred their powers.

• If only some states refer power or the reference of powers is not coherent:

• uniformity will not be achieved

• threshold jurisdictional matters will have to be resolved in many cases.117

Advantages

• Referral of power does permit change, if the referral is seen not to achievedesirable outcomes.

• It is more feasible than seeking to have the Constitution amended byreferendum to extend the Commonwealth powers to de facto couples, ashistorically most referendums have failed.

114 Ruth Lamperd, ‘New law will hit family unit: MP’, Courier-Mail, 16 May 1996, p 12.

115 Queensland Parliamentary Debates, Weekly Hansard, Petitions, 11 October 1996, p 3317.

116 P H Lane, An Introduction to the Australian Constitution, The Law Book Company Limited,1994, p 121.

117 Report of the Advisory Committee to the Constitutional Commission, Distribution of Powers,1987, p 65.


5.4.4 The Position Of Other States Regarding Referral

Not all States have expressed a willingness to refer power to the Commonwealth. Itwas stated in the Explanatory Notes of the lapsed Queensland Bill that bothTasmania and the Northern Territory were actively pursuing a referral.118 Victoriaand New South Wales have indicated that they have no present intention of referringpowers to the Commonwealth.119

6. CONCLUSION

In the last 10 to 15 years the states and Commonwealth have recognised de factorelationships in various ways. Many areas of the law now make no distinctionbetween de facto and de jure marriages. These changes reflect changing communityattitudes to de facto couples.

Queensland de facto couples must continue to rely upon remedies under thecommon law to resolve property disputes upon the breakdown of their relationships.The position of de facto couples under the common law has improved dramaticallyin recent years. Nevertheless, the common law continues to have drawbacks. Thereis still much uncertainty surrounding the outcome of proceedings under the commonlaw. The common law remedies do not address the inequities that exist betweenparties in terms of future needs, obligations and capacities. The current statutoryregimes in other states are also not without their critics. The legislation has notpermitted the courts to consider the future needs and resources of the parties. TheFamily Court is seen by many as the appropriate forum for dealing with de factoproperty disputes. It already has jurisdiction regarding pre-nuptial children.

The extension of laws to de facto couples for resolution of property disputes is stillcontroversial. Church groups see marriage and family as inextricably linked.De facto relationships as an alternative to marriage are seen as striking at the heartof the ‘family’. Some see extension of the laws as encouraging de factorelationships. The debate is further complicated by calls for legal recognition ofsame-sex couples.

There are several options available to address the existing problems of de factocouples under the law in Queensland. Legislation may be enacted or powerregarding de facto couples referred to the Commonwealth. Any exercise of theoption to introduce legislation should ideally have regard to the problems revealed

118 Commonwealth Powers Amendment Bill 1995, Explanatory Notes, p 2.

119 Telephone conversation with officers of NSW and Victorian Departments of Attorneys-General.


in the case law of states which currently have such legislation. Uniform legislationbetween all states and territories would be advantageous but would be subject toagreement by state Attorneys General. Referral of powers to the Commonwealthwould enable the Commonwealth to introduce legislation giving jurisdiction of defacto property matters to the Family Court. The success of this option dependsupon the preparedness of other states to refer their powers.


BIBLIOGRAPHY

Journal Articles

• Bailey-Harris R, ‘Property disputes between de facto couples: is statute the bestsolution’, Australian Journal of Family Law, 5(3), December 1991, pp 221-240.

• Bailey-Harris R, ‘De facto relationships: Searching for justice nationwide’,Reform, December 1993, No 66, pp 27-29.

• Boije L, ‘Sweden, where the living together is easy’, Sweden Now, No 3, 1988,pp 14-17.

• Brown R, ‘The law, public policy and the family’, Australia and World Affairs,No 22, Spring, 1994, pp 14-21.

• Chisholm R and Jessep O, ‘De facto couples and property adjustment’, LawSociety Journal, 30(10), Nov 1992, pp 32-38.

• Carr W, ‘Domestic contributions in de facto property disputes’, Law InstituteJournal, May 1993, pp 405-409.

• Cox I, ‘De facto spouses in Victoria’, Law Institute Journal, 68 (1-2) January/February 1994, pp 54-55.

• —‘De facto relationships’, Commonwealth Law Bulletin, 19(4), October, 1993,pp 1513-1515.

• Derkley K, ‘The hard earned pink dollar’, Law Institute Journal, 69(8), August1995, pp 742-743.

• Di Marino J, ‘Govt reform delays leave de factos in legal limbo’, The WeekendIndependent Indepth, 5 May, 1995, p 9.

• Donovan B, ‘De facto relationships and property adjustment - part I’, AustralianFamily Lawyer, 8(2), April 1993, pp 30-37.

• Donovan B ‘De facto relationships and property adjustment - part II’, AustralianFamily Lawyer, 8(4), June 1993, pp 31-37.

• Donovan B, ‘De facto relationships and property adjustment - part III’,Australian Family Lawyer, 9(1), September 1993, pp 26-30.

• Eades J, ‘Towards the Family Court dealing with all family matters’, Law SocietyJournal, May 1990, pp 46-48.

• Galloway R, ‘The new de facto legislation’, Queensland Law Society, Volume 1CLE/FLPA: Family Law Residential, Continuing Legal Education Seminar, 3-5June 1994, pp 73-90.


• Harrison M, ‘The legal system and de facto relationships’, Family Matters,No 30, December, 1991, pp 30-33.

• Harrison M, ‘The parliamentary joint select committee report on the operationand interpretation of the Family Law Act: A commentary’, Australian Journal ofFamily Law, 7(1), April 1993, pp 84-91.

• Kovacs D, ‘A dozen ways (and more) to lose a de facto property case’, LawInstitute Journal, August 1994, pp 723-733.

• Miller J, ‘The continuing revolution in de facto relationships property cases -beyond Dwyer v Kaljo’, Law Society Journal, 34 (2), March 1996, pp 66-68.

• Neave M, ‘Living together - the legal effects of the sexual division of labour infour common law countries’, Monash University Law Review, 17(1), 1991,pp 14-63.

• Semple C, ‘90s relationships’, Alternative Law Journal, 20(4), August 1995,pp 197-198.

• Sarantakos S, ‘Unmarried cohabitation: options, limits and possibilities’,Australian Journal of Marriage and Family, 15(3), 1994, pp 148-160.

• White M, ‘De facto property rights - the present situation and possible futurelegislation’, Family Law: Property - From Cradle to Grave, Queensland LawSociety, Continuing Legal Education Seminar, 31 May- 2 June 1991.

Newspaper Articles

• Arndt B, ‘The second time around’, Sydney Morning Herald, 24 June, 1996,p 15.

• Brown N, ‘Churches must preserve the ideal of the “Family”’, Sydney MorningHerald, 22 May, 1995, p13.

• —‘Call for de facto law reform: Judge cites problems with inconsistencies’,Courier Mail, 6 January, 1995, p 3.

• —‘Churches silent in family debate - lobby’, Sydney Morning Herald, 15 May,1995, p 9.

• —‘Equality for gay couples’, Sydney Morning Herald, 9 January, 1995, p 12.

• Farouque F, ‘Judge urges hand-over of de facto property powers’, Age,12 October, 1995, p 9.

• Gripper A, ‘Till death do us part’, Sydney Morning Herald, 29 January 1996,p 11.

• Heath S, ‘Upheavals ahead as the shape of families change’, Age, 18 November,1996, p 5.


• Kingston M, ‘Gay public servants gain rights of married’, Sydney MorningHerald, 5 January 1995, p 2.

• Koch T, ‘The real worth of a partner’, Courier Mail, 2 September, 1996, p 19.

• Lamperd R, ‘New law will hit family unit: MP’, Courier Mail, 16 May 1996,p 12.

• Larriera A, ‘Judge - Give gay couples equality’, Sydney Morning Herald,4 January 1995, p 1.

• McClelland J, ‘Family focus is stuck in a time warp’, Sydney Morning Herald,5 March 1994, p 30.

• Neil R, ‘A fair go for gays?’, Australian, 14 January 1995, p 30.

• Oberhardt M, ‘Court rules man must pay his de facto 40 pc’, Courier Mail,23 August 1996, p 3.

• O’Chee A, ‘A vital piece of paper’, Courier Mail, 3 May 1996, p 21.

• O’Chee A, ‘De facto law under review’, Courier Mail, 3 May 1996, p 10.

• —‘Reform call over property split-up’, Courier Mail, 7 April 1995, p 13.

• Riley M, ‘Until divorce us do part - a nation divided’, Sydney Morning Herald,12 September, 1995, p 1.

• Russell M, ‘Gay couples win family status’, Sydney Morning Herald, 18 April1995, p 1.

• —‘Settlements made easier’, Courier Mail, 11 September 1995, p 11.

• —‘States urged to adopt Queensland laws on de factos’, Courier Mail,22 October 1994, p 7.

Reports, Discussion Papers

• Australia, Constitutional Commission, Final Report of the ConstitutionalCommission, Vol 2, Canberra, AGPS, 1988.

• Australia, Constitutional Commission, Report of the Advisory Committee to theConstitutional Commission, Distribution of Powers, 6 June 1987.

• Australia, Report of Joint Select Committee on Certain Aspects of the Operationand Interpretation of the Family Law Act, November 1992.

• Australian Capital Territory, Department of the Attorney-General, DomesticRelationships, Discussion Paper, 1993.

• New South Wales Law Reform Commission, Report on De Facto Relationships,June 1993.


• Queensland Law Reform Commission, Shared Property, Discussion PaperNo 36, October 1991.

• Queensland Law Reform Commission, De Facto Relationships, Working PaperNo 40, September 1992.

• Queensland Law Reform Commission, De Facto Relationships, Report No. 44,June 1993.

Monographs

• Australia. Department of the Parliamentary Library, Parliamentary ResearchService, Australian Family Law: Some Current Issues, Background Paper No 321994/95.

• Nygh P E, Guide to the Family Law Act, Butterworths Pty Limited, Sydney,1986.

• Queensland Law Society, Family Law: Property - From Cradle to Grave,Continuing Legal Education Seminar, 31 May- 2 June 1991.

• Queensland Law Society, Volume 1 CLE/FLPA: Family Law Residential,Continuing Legal Education Seminar, 3-5 June 1994.

• Queensland Parliamentary Library, The Legal Recognition of De FactoRelationships in Australia, Background Information Brief No 12, January 1986.

• Summers A, Damned Whores and God’s Police: The Colonization of Women inAustralia, Penguin Books, 1975.

Legislation

• De Facto Relationships Act 1984 (NSW)

• De Facto Relationships Act 1991 (NT)

• De Facto Relationships Act 1996 (SA)

• Domestic Relationships Act 1994 (ACT)

• Family Law Act 1975 (Cth)

• Family Law Reform Act 1995 (Cth)

• Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

• Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld)

• Property Law Act 1958 (Vic)


Media Releases

• Lavarch Hon M, ‘Queensland de facto rights move welcome’, 28 August, 1994,Ministerial Document Service Number 38/94-95, Monday 29 August 1994.

• Foley Hon M, ‘Family Court rights for de facto couples’, Media Statement19 October 1995.

Internet Items

• Australian Capital Territory, Discussion Paper Domestic Relationships,http://actg.canberra.edu.au/actag/Reports/Other/Rep1/Rep1ind.html

Court Cases

• Baumgartner v Baumgartner (1987) 164 CLR 137.

• • Bryson v Bryant (1992) 16 Fam LR 112.

• • D v McA (1986) 11 Fam LR 214.

• • D v McK (1986) DFC 95-030

• Dunne v Turner (1996) Unreported decision of the Court of Appeal, SupremeCourt of Queensland.

• Dwyer v Kaljo (1987) 11 Fam LR 785.

• Hartigan v Widdup No 631 of 1991, Unreported decision of the Supreme Courtof the Australian Capital Territory.

• • Muschinski v Dodds (1985) 160 CLR 583.

• Roy v Sturgeon (1986) 11 NSWLR 454.

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