Law of unintended consequences…

By Legal Eagle

Laws designed to allow same-sex and de facto couples to access the Family Court on an equal basis to married heterosexual couples may have unintended consequences, it seems.

The amendment inserted a new definition of “de facto relationship” in s 4AA of the Family Law Act 1975 (Cth):

Meaning of de facto relationship

(1) A person is in a de facto relationship with another person if:

(a) the persons are not legally married to each other; and

(b) the persons are not related by family (see subsection (6)); and

(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2) Those circumstances may include any or all of the following:

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f)the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(5) For the purposes of this Act:

(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

(emphasis to s 2AA(5)(b) added)

The amendments have been dubbed “the mistress laws” by the Daily Telegraph, as the consequence of s 2AA(5)(b) might be that if a person has a second relationship outside of marriage, then the second partner may be able to claim for a share of the assets in Family Court proceedings. This could come as a shock to those cheating wives or husbands who think that they are protected by their married status.

The new laws will also render a whole range of pre-nuptial agreements void.

Same-sex couples definitely should have the same recourse to the law as heterosexual couples upon breakdown or the end of a relationship, particularly if they choose to formalise their relationship by registering it. But these new laws do not give either heterosexual or homosexual people a choice as to whether to formalise their relationship.

It seems to me that all this could have been avoided by instituting some kind of civil relationship registry whereby heterosexual and same-sex couples can register their relationships in a legally binding way. I don’t really understand the concern of religious groups; if it is a civil relationship registry, then it does not impinge upon the marriage laws chosen by their particular religion. People can still choose to get married within their particular religion according to the customs of that religion.

A particularly interesting question is whether these laws effectively legalise polygamy, as multiple partners may be treated as equivalent whether there is a pre-existing marriage or not.

To those politicians who rejected the prospect of a civil register on religious grounds – did you really want to sanction polygamy? Actually, come to think of it, the Old Testament and the Qu’ran are full of polygamy, so perhaps a tacit recognition of polygamy doesn’t concern the religious as much as a formal recognition of same-sex couples?

Ha, those unintended consequences, they’ll get you every time.

(Via Not a Hedgehog)

Update:

I’m not the only one to think that these laws effectively sanction polygamy. Meanwhile, Saint is seriously unimpressed with the new laws. (link to Saint now fixed).

Update 2:

Have a look at Marcellous’ excellent post on this issue. I wish I’d included it in my analysis when I initially wrote my post. My only excuse is that I think it was written two weeks before my son was born, and I was probably in the throes of false labour, so didn’t take it in properly at the time.

Marcellous also has some other posts which show the pitfalls of retrospectively untangling a relationship.

First, there’s the recent case of Whiting v Whiting, which is very messy indeed.

Secondly, there is Marcellous’ earlier post on a case, Quijarro v Robson [2008] NSWSC 818 which shows the problems which may arise where a de facto has a secret mistress. If A thinks she has a de facto relationship with B, but B in fact has a secret relationship with C on the side, does A still have a de facto relationship with B? Or is the only de facto relationship between B and C? This case involved a will where B died and did not leave provision for A, who thought she was B’s de facto. It transpired that B was having an affair with C. Accordingly, A could not establish that she had a de facto relationship with B. As Marcellous says:

[I]f you think you are a de facto but your partner has deceived you or you have been prepared to overlook what you see as mere lapses or deviations by the other person, you may really be nothing. You need to be legally married to be able to do that. That seems a very strange result indeed, since it means that, contrary to all the stuff that conservative moralists say and indeed some empirical observations about how many people actually live, the requirements for fidelity in a de facto relationship are in fact higher than those which apply as a matter of fact in a great many de jure marriages (as a matter of law, infidelity is irrelevant to these).

It may be that s 2AA(5)(b) was enacted to get around problems such as these.

10 Comments

  1. saint
    Posted March 4, 2009 at 5:28 pm | Permalink

    Helen, I don’t see pigs flying. You agreed with me on post on a similar issue at my blog some time back. I suspect I know your reasons, and I think they are (perhaps just as) valid.

  2. conrad
    Posted March 4, 2009 at 6:19 pm | Permalink

    “No evidence to hold it up.”
    .
    Unfortunately, this is a problem with almost all gender research — people don’t answer honestly, so there’s very little real evidence on many topics (and presumably there never will be). The best you can therefore get in terms of hard evidence you can measure are correlated things. The alternative is people could give up looking at these things altogether (and what fun would that be ? :), and then all we would hear about is how middle-age man leaves wife for woman 20 years younger, or negative comments about the fidelty of the female (as was in your comment). Perhaps the real reality is that life’s one big swinger’s party for the over 50s — but who wants hear that? No doubt pensioners are at it too with all that spare time.
    .
    I personally thought that the STD stuff wasn’t the best measure, all I think an even simpler confound was that the older you are, the more likely you are to have bumped into a disease by chance (including ones with few symptoms). It therefore isn’t surprising that older groups have higher rates of transmission than, say, 16-18 year olds.

  3. John Greenfield
    Posted March 5, 2009 at 5:30 pm | Permalink

    Australia already has de facto polygamy. For example, if two lezzies have a child using the sperm of a gay male friend, and he is actively involved in the child’s life, there is not much difference from conventional understandings of polygamy.

    Personally, I think there is a stronger case for legal recognition of traditional polygamy than there is for gay marriage. Polygamy has existed as a legitimate form of marriage perhaps even longer than the one chick-one bloke model. Polygamy is still legimate in many (if not most) parts of the world. OTOH, marriage between two people of the same sex has no track record whatsoever.

    While polygamy remains illegal, Australia’s claim to be so multiculti is a crock.

  4. saint
    Posted March 5, 2009 at 9:28 pm | Permalink

    You won’t find widespread polygamy even in societies which practice it – it is usually reserved for the elite or the rich. Even in Muslim countries which allow it, it is regulated – in Malaysia for example, men are supposed to provide a separate home etc for each wife.

    Also study after study – even by Muslims about polygamy amongst Muslims, or by Mormons on Mormon polygamy (which was long ago discarded by ‘regular’ Mormon groups, etc etc) has shown it is of serious disadvantage to women and children.

    What the men who like to think that polygamy is such a good thing forget, that it evolved in agrarian nomadic societies where men tended to get killed often so there was a gender imbalance. Doesn’t translate into modern societies. What men for example who like to think polygamy is such a wet dream forget that – apart from supporting multiple families, the more men who practice polygamy the greater proportion of men who will never have a wife at all.* For women it also works that the least desirable women usually find themselves as third, fourth whatever wife of the more undesirable men.

    I couldn’t give a toss about multiculturalism. I have no desire to repeat history and go back to wife stealing etc etc. Or see Australia turn into the joke that is Britain. There are many many good reasons why monogamy works and sustains more stable societies.

    BTW The OT never condoned polygamy. There were times when it was practiced by the ancient Israelites but it was regulated to protect women and children. The descriptions aren’t exactly of domestic bliss – more like trouble and strife (funnily echoed in modern reports of polygamy with favoured wives, ‘second class’ families etc etc.) A description in the OT is not a prescription.

    (*actually China and India’s gender selected births coupled with preferences for males have also created a large group of men with no prospect of getting married. A big issue in some provinces in China where they number in their tens of thousands. They are not happy and some government officials see forced conscription as one option to keep them “occupied”. Yeah I’d like to see a pile of rabid Muslim men with no prospect of getting married living next door to John).

  5. conrad
    Posted March 6, 2009 at 4:48 am | Permalink

    “A problem with polygamy that I can see in our present society is that a man has to have a lot of resources to sustain multiple wives (and multiple children”
    .
    Actually, if you had a modern version of polygamy (i.e., where the women work — and probably very ancient polygamy too, where everybody had various tasks), it would be the opposite, since it would reduce the risk of low family income if any one member was unemployed.

  6. conrad
    Posted March 6, 2009 at 4:54 am | Permalink

    “There are many many good reasons why monogamy works and sustains more stable societies.”
    .
    People always say this and bring up various arguments for it, but is there any real evidence for it? There are already fairly decent gender imbalances in many places and also places that allow for polygamy, but none of them have ended up in widespread chaos because of it.

  7. Petierla
    Posted March 6, 2009 at 5:00 pm | Permalink

    This thread makes very thought-provoking reading, and if I may say without being taken as rude, says some very interesting things about the law and it’s practioners. There seems to be a lot of time and effort being spent worrying about the minutiae of the clauses and sub-clauses but very little consideration given to the idea that it may well be that legislation such as this (of which this is a fine example), that causes much of the trouble in the family court. Is it not time that our law-makers woke up to the fact that the law has vitually no place in personal relationships. It is not possible to legislate for compassion, politeness, and decency. If the whole system of resolution is adversarial by nature, then in every outcome the must be, to some degree, winners and losers. tThe sooner the law-makers (and for that matter religious groups) but out of domestic relationships, that are by definition unique, the better off we may all be

  8. Posted March 7, 2009 at 12:17 am | Permalink

    @Petierla:

    The law generally does not interfere in personal relationships for so long as the relationship is in existence. You can’t get a court order to make someone love you. When people go to law that usually coincides with a breakdown in the relationship – eg, domestic violence, rape in marriage (once legally impossible) or spousal maintenance. The problem is that while people are in relationships they trust each other or at least one of them (leaving polygamy aside for a moment) trusts the other. They are vulnerable to each other and they are not necessarily in a position (apart from threatening to bring the relationship to an end) to bargain with each other or protect their individual interests. One person can, for all sorts of reasons, end up with all the property. Classically, in heterosexual relationships, that was the man because of the better economic position of men in the public sphere. To say that the law shouldn’t be involved at all would mean that at the end of a relationship the loss should lie where it falls and the corresponding gains likewise, no matter how unfair that was. That would be a truly startling proposition. The question is really to what extent the law should intervene and on what bases.

    Personally, I don’t really have a problem with the implicit recognition of polygamy. After all, (for example) you can lose out if your husband loses all his money at the casino or makes a disastrous business decision, so why shouldn’t you lose out if instead he has another partner who has claims on his property because of the way he has behaved towards her?

    What I find deliciously ironic is how opponents of same-sex marriage have ended up throwing away the baby with the bathwater because instead of permitting same sex marriages they have ended up with a position which assimilates all de facto relationships to marriage. The alarming thing is that, because the laws apply by reference to when relationships come to an end rather than when they came into existence, the effect is retrospective – normally thought of as a very big no-no indeed.

One Trackback

  1. By skepticlawyer » The more the merrier? on October 6, 2009 at 12:35 am

    […] As a result of the amendments to the new s 4AA of the Family Law Act 1975 (Cth) (which I’ve discussed previously here) a mistress is almost a “constructive concubine”. Those provisions worry me, because […]

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