De facto couples face changes in status

By RUTH BERRY


Little attention has been paid to the Relationships Bill, but it makes major changes to the legal status of all de facto couples, a move critics say is unfair on those who do not want to be treated as if they were married. While MPs voted in favour of the Relationships (Statutory References) Bill during its first reading, some now acknowledge this key aspect needs further exploration.

Committee chairman Tim Barnett is not prepared to rule out a significant rethink, and further advice and reports are now being sought from officials and the Human Rights Commission.

The concerns centre around the bill's attempt to treat those who choose not to marry or have a civil union as if their relationship was "in the nature of marriage" for legal purposes.

Driving the reform are human rights dictates which say the Government could expose itself to complaint and litigation if statutes continue to discriminate on the basis of marital status.

The bill will confer the same rights, entitlements and obligations on de facto couples under almost all laws. More than 1000 provisions across more than 100 different statutes are involved.

But the committee has been told many couples decide against formalising their relationships to avoid the level of interdependence legally conferred by a marriage.

If same-sex couples and heterosexual couples seeking an alternative to marriage win the right to civil union, there will be no category of people who can't opt to enter into marriage-like commitments.

Is it fair or appropriate, then, to impose such obligations on two people who are co-habiting and have sex, but want to limit the relationship to that? Should two 20-year-olds flatting together who form a temporary sexual relationship be automatically treated as if they were married?

MPs on the committee define the bill as a 'tidy-up" as many of the changes are to minor or obscure laws. While it seems the bill won't revolutionise de facto couples' lives overnight, it will enshrine in a much broader way a trend already begun to fundamentally change their legal status.

It raises questions about whether, in the pursuit of improving its human rights record, the state is moving to breach the rights of individuals to determine the boundaries of their own relationships.

The Social Security Act already prescribes that heterosexual de facto couples are considered to be living in the nature of marriage when it comes to benefits or superannuation.

Same-sex couples, who have generally benefited financially from not being considered couples under this regime, will now be brought into it - a change the Government believes will save it $10 million a year.

A number of submitters in favour of civil union have complained about the treatment of de facto couples under the benefit laws. Although court rulings have previously forced Work and Income to amend the way it defines de facto, the Government has no intention of significant changes in this area.

Some MPs are also reconsidering the Property (Relations) Act passed in 2001. The act determined that after three years of living together de facto couples who split would generally have to divide their property equally, unless alternative legal arrangements were made. Some argued that people should be able to opt into that arrangement, rather than pay a lawyer to draw up an opt-out contract.

The definition of de facto included same-sex couples, whose relationship then lacked protection under the law. But if civil unions become available, all couples will be able to choose to formalise their relationships - raising more questions about whether the state should legislate the 50/50 property carve-up when couples have not taken that extra step.

Like the benefit laws, the Relationship (Statutory References) Bill does not impose a time period after which a de facto relationship is treated as one in the nature of marriage. It appears it could now legally apply from day one of co-habitation.

This, too, is causing concern and may yet result in time frames being imposed in cases where extra responsibilities or obligations would flow from the change. Different definitions of de facto may be applied to different situations.

Another major issue is the concern about the primacy being given to the "couple" relationship in law. A number of submitters have argued their first commitments and obligations are to others, whether a family member or a friend with whom there is not a sexual relationship.

They effectively want stronger protections for "next of kin" type relationships. Maori Party co-leader Tariana Turia has raised concerns in this area.

How are the needs of whanau balanced against the priorities of an individual or spouse? she asks. In her case, she says, while husband George is "absolutely central" to her life, she has whakapapa obligations and responsibilities to protect the next generation, which give precedence in some decision-making to the collective (whanau, hapu) over her husband.

How it affects you

* Married: No changes, although others acquire the same legal status.
But age after which you can marry without guardian or Family Court approval is dropped from 20 to 18.

* De facto heterosexual: You will acquire the same legal rights and obligations as married people under most and, probably eventually, all law. You already have this status under several laws.This happens regardless of whether you enter a civil union.

* De facto same-sex: The same as de facto heterosexual, although changes still do not offer you the right to "marry".