Update 11 December 2008: I’ve just read the opinion of University of Sydney Law School Professor Patrick Parkinson, who says:
“To be honest, I have no idea what the new law means,” he said. “It appears de facto relationships are being treated like marriage without any understanding of the consequences. People are unaware that they will be forced to go to court and the government hasn’t been listening to one word of the criticisms of this bill”.
Original post: I have been optimistically awaiting legal reform introducing equality for same sex couples in Australia. I hate discrimination and double standards. Unfortunately, the new laws about de facto relationships, which enforce the same legal rights and responsibilities for same sex and opposite sex de facto couples as for heterosexual married couples, are fundamentally flawed and will have significant negative unintended consequences.
The legislation defines a de facto relationship as an opposite sex or same sex couple “living together on a genuine domestic basis”. Closer examination reveals that the definitions of “de facto” and “living together” have been considerably widened from those currently in common usage. The SMH reports that:
Under the legislation, courts will determine whether a couple are involved in a de facto relationship by taking a number of factors into account, including the duration of the partnership, whether they are living together, whether a sexual relationship exists, the degree of financial dependence and the ownership of property.
This means that many people who do not consider themselves to be in de facto relationships may be legally regarded as such. These people face the possibility of being taken to the family court by former partners and potentially being forced to pay maintenance for them. You cannot now have a sexual relationship without it being considered a financial relationship by the government. This new law defines all sex as prostitution, and the cost of sex has undergone hyperinflation.
The full details of the definition of de facto are in two Acts of Parliament: the Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Bill 2008 (report 485kb PDF) and the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (report 293kb PDF).
The criteria that the Family Court and the government will use to determine whether what you do in your private life can be legally defined as a de facto relationship include:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- the care and support of children;
- the reputation and public aspects of the relationship.
I consider it practical in contemporary society to define marriage in terms of its function rather than its form. Marriage serves a number of functions, including the expression of commitment and securing of legal and financial agreements and protections. I actually believe that in a legal sense marriage is irrelevant. The traditional concept of marriage has no functional relationship to social activities such as shared living arrangements or having children. Marriage is merely a legal contract based on money and property that some people find useful and/or comforting.
Over time, various state laws have made cohabiting sexual relationships into de facto marriage relationships, and the the inconsistencies between them partially prompted the new federal laws. The problem with the new laws is that many people don’t want to enter into the legal contract of marriage or a de facto equivalent, which is why they don’t get married.
The new laws go even further by potentially enforcing legal de facto status on people in long term relationships who do not to live together, where they keep their finances and assets completely separate and where there is no financial dependence or interdependence between them. The advice from one law firm modestly states that:
This will be a significant problem for some people who have entered into de facto relationships to avoid the rights and obligations of property settlement and maintenance claims that are normally attached to marriage breakdowns.
Ironically, the federal government itself recognises that:
cohabitants who have expressly avoided marriage may be loath to have the legal obligations and status associated with it foisted on them after, for example, they have lived together for a certain period.
Exactly. Thanks for ignoring and undermining my personal relationship choices Rudd. Your nanny police state is becoming intolerable. I am appalled that the government has created the opportunity for one person to make a financial claim on another just because they have had an ongoing sexual relationship. Who I choose to fuck and where I choose to fuck them is no one else’s business. It is not economic activity. It is social activity. It has no economic consequences and should have no legal consequences.
A newspaper article contains the following advice:
family lawyer Paul Hopgood said the door was ajar for jilted lovers to seek maintenance orders.
“I get high-profile people from around town saying, ‘I’m having an (affair) with so and so. I wine and dine her and take her on holidays. I look after her and it’s been going on for five years. But I’m safe – she hasn’t got the key to my house’.
“You don’t have to live in the same house and under the same roof to be a de facto. A lot of people are living in de facto relationships and don’t think they are.”
Mr Hopgood cited a couple who might not share a home because of international business commitments.
“If everything else is there, apart from the common residence, they’ve still got a de facto relationship.”
This is very scary advice for anyone in a long term sexual relationship, whether you live together or not.
People who have chosen to live separately while maintaining relationships now find that they have been defined as de facto couples without their knowledge or consent, and the legal implications may be significant. Living apart together (LAT) relationships have been growing in number because, for some people, they offer the best balance of individuality and togetherness, and they neatly keep property and assets out of the relationship.
Martyn Pedler eloquently explored the benefits of LAT relationships in the recent episode of SBS’s Insight on the future of marriage. I agree with him entirely:
I think as much as possible you should keep practicalities out of your relationship because practicalities are the least romantic things there are. So I think having to make that little bit of effort to see someone – you’re still excited when they come over at night to visit you instead of them always being in your space whether you want them to be or not is actually a way to keep romance alive.
It is apparent that people in cohabiting and LAT relationships will have to prepare the equivalent of prenuptial agreements – called cohabitation and separation agreements – in order to securely maintain their individual assets. A newspaper reports that:
So now you have to be financially screwed by lawyers to prepare these documents to ensure you don’t get financially screwed by your ex partner in the family court as they seek maintenance and a share of your superannuation.
One of the unintended consequences could be the sudden ending of emotionally positive relationships to avoid negative financial consequences before the two year qualification period begins. Another newspaper reports that:
The media reporting on this issue is typically patriarchal and anachronistic. It’s all about rich businessmen potentially being pursued for maintenance by discarded mistresses. For a country that is ranked in the world’s top 10 most gender equal countries, this is inexcusable.
Susan Maushart’s excellent article on serial monogamy describes how many people have several long term sexual relationships during their lives and how it is beneficial to graciously end a relationship before moving on to the next one. Her article will need to be updated, as I suspect that moving on from relationships is now going to be more difficult for many people.
Another unintended consequence of this law is that serial monogamy may evolve into speed monogamy as more people protect their individual assets by choosing not to fuck the same person for longer than two years. A neat analogy comes to mind.
The conservative anti-sex lobby promotes abstinence only sex education, which results in more unplanned teenage pregnancies instead of less. Similarly, the moral thought police in Politburo Rudd aim to create more stable long term relationships through this unnecessary social engineering but will instead create less.
The forgotten people in middle class society – non-married or single working people – who receive none of the middle class welfare of breeder families are who are already overtaxed are now having their preferred form of relationship over-regulated by a neurotic morally conservative government.
It is sadly ironic that these legislative changes are bringing Australia closer to realising the view of marriage espoused by feminist author and critic Sheila Jeffreys, who argues that marriage is a form of prostitution. This conservative blog agrees. By making all long term or de facto relationships like marriage, whether people want them to be or not, the Australian government is making them more like opportunities for people to economically exploit their partners in exchange for sex. Or is it the other way around? Whatever.