De facto couples' status detailed in revamped bill

By VERNON SMALL deputy political editor

More than 130,000 gay and heterosexual couples will face a new definition of whether they are in a de facto relationship under a proposed revamp of matrimonial property law.

The change is part of the rejigged Property (Relationships) Bill which will put de facto couples on the same footing as married couples when there is a break up.

A select committee considering the bill has recommended that for property sharing purposes, a de facto relationship exists where two people aged more than 18 lived together for three years as a couple - dumping the earlier definition of a relationship "in the nature of marriage."

Drawing on existing law in New South Wales, the committee recommended the courts take into account all the circumstances of the relationship, including its duration, children, financial and domestic arrangements and whether there was a sexual relationship.

But judges would have considerable discretion in weighing the criteria in each case.

Courts could divide property from de facto relationships of less than three years only in special circumstances.

At least 230,000 people live in heterosexual de facto relationships. The number of same-sex couples is unknown.



The committee also recommended a standardised agreement for couples who want to contract out of the law. Such agreements could be overturned only if they would give rise to "serious injustice" - a stronger measure than the existing test which assesses only if it would be "unjust" to allow the agreement to stand.

The committee urged lawyers to offer cheap deals to clients looking to set up " opting out" agreements.

It recommended the law come into force on February 1, 2002, eight months later than originally planned, with contracting out provisions to apply from August 2001.

Select committee chairman Tim Barnett said all those with existing agreements would need to have them reassessed to ensure they were consistent with the new law.

He said the $60,000 budgeted to advertise the changes was unlikely to be enough, but more may be available.

National's justice spokesman Tony Ryall said another $60,000 had been promised, but that would still be insufficient to publicise such a far-reaching measure.



Mr Barnett said he expected the law to be passed by Christmas, and that the two areas requiring a conscience vote - including same sex relations in the definition of de facto and including de facto couples in the same law as married couples - would win a majority in the House.

As expected, the committee recommended reinstating the words spouse, husband, wife, de facto and marriage after overwhelming public opposition to the neutral term partner originally proposed.

The bill allows the courts to vary the standard 50-50 property split if one partner's income and living standards are likely to be significantly lower than the other's.

Spousal maintenance provisions are extended to include de facto partners and amended to give judges more flexibility granting maintenance. De facto partners would be entitled to claim over a deceased's estate.

Associate Justice Minister Margaret Wilson said the legislation introduced a fair system for the division of property when relationships ended.

"The proposed new law is clear. It's about property. It's not about moral judgments on people's perfectly legal decisions about their relationships."

Mr Ryall said the law would be a boon for lawyers. As many as 80 per cent of relationship splits were likely to come before the courts, compared with 10 per cent now.

He said the majority on the select committee had ignored advice from the Principal Family Court Judge, Patrick Mahoney, for greater direction and definition in the law.

DE FACTO DEFINED

The committee recommended that for a relationship to be classed as de facto, the partners must live together as a couple, and that the court must consider all the circumstances of the relationship, including:

* its duration.

* the nature and extent of common residence.

* whether or not a sexual relationship exists.

* the degree of financial dependence or interdependence and any arrangements for financial support.

* the ownership, use, and acquisition of property.

* the degree of mutual commitment to a shared life.

* the care and support of children.

* the performance of household duties.

* the reputation and public aspects of the relationships.

The court may give any of the criteria the appropriate weight indicated by the individual case.