Page 1926 - Week 07 - Wednesday, 16 June 1993
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The Government acknowledges the many changes in living patterns and attitudes to relationships and property which underlie these figures. It is also conscious of a growing recognition in the ACT of the needs of those in a wide variety of domestic relationships, not just those who live in long-term sexual relationships. People in domestic relationships may include those caring for an ill or aged parent or friend, grandparents providing a home for their grandchildren, or others who have committed themselves to the welfare of someone at their own expense. In everyday cases, people will not need to avail themselves of legal remedies; but, in those extraordinary situations when people need to turn to the law for justice, justice should be available to them.
This paper proposes, then, that where a person has been in a domestic relationship for at least two years they will be able to apply to the court for relief if they have provided personal or financial commitment and support of a domestic nature to the material benefit of another person or other people, and they may be entitled to relief. However, it should be made clear that the relationship is to involve a commitment which goes beyond friendship and neighbourliness. Flatmates, people living in group houses, employed live-in housekeepers and others in domestic employment, and those living in halls of residence for employees or students would not normally be entitled to seek relief.
It is not intended that the law unduly intrude into personal relationships. It may be feared that the proposal will create a plethora of new rights and will open the floodgates for claims without merit, as well as to vexatious litigation. The intention is, however, to codify and simplify principles which have been developing for many years in the courts. The doctrine of equitable trusts already applies to most of the cases which are being considered, and some excellent examples of case law are set out in an appendix to the paper. However, the law is properly criticised for forcing applicants to have recourse to what is currently an antiquated and costly process to achieve these results, which are never certain.
As our society has become more pluralistic and multicultural, greater emphasis is being placed on fairness and justice as the mainspring of law, rather than law representing the moral beliefs of any particular group. As a result, the judicial view has developed that the approach to domestic relationships should no longer be restricted to either common law property principles or even the contributions made by the parties, but rather enlarged to embrace the concepts of unconscionability and unfair enrichment.
The financial conduct of people who live in durable domestic relationships is often similar to that of married persons. However, it is not intended to liken these relationships to marriage. This is a fundamental difference in the ACT approach from that of the States. Even so, it is considered that the Commonwealth Family Law Act approach to property, as well as the practice and procedure in settling property disputes, is of considerable use as a model for change in the ACT. Limited State legislation has not stopped distressing, drawn-out and expensive applications for equitable relief in those jurisdictions. Consequently, as part of a larger project to provide for fairness and equity for those living in domestic relationships and their children, the Government has released this paper to canvass legislative change to cover domestic relationships including de facto marriages. Other legislation is also open to change to provide fairness and justice for those in domestic relationships.
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