Page 3344 - Week 11 - Tuesday, 12 October 1993
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The draft law will simplify the resolution of property disputes between those who have been living in a domestic relationship. It will encourage mediation. It will also allow a court or arbitrator to make fair arrangements for the allocation of property between parties in much the same way as the Family Court may adjust property interests between married couples when the marriage fails. In making these arrangements, courts would be able to take into account the direct or indirect financial or non-financial contributions which have been made by one of the parties to the relationship to the welfare or property of the other party. Home care, child-care, and indirect financial contributions to property would also be recognised. However, people would be able to opt out of the proposed system, if they so desired, by making their own financial arrangements by contract. So, courts may, in special circumstances, make provision for maintenance. The legislation is designed to achieve a more equitable adjustment of property rights where a sharing by a person of the value of property in another person's name is justified because of his or her non-financial or indirect financial contributions to that property.
Madam Speaker, 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. This beneficial application of the law is intended to cover a wide range of equitable trust situations. One party may be in a position of financial dominance. In others there will be a form of mutual interdependence. In both cases the issue of a sexual relationship between the parties is not the determining factor. The determining factor for applicants is to be their contribution to the material benefit of the other person.
It is thus proposed that a person who fulfils the stipulated requirements should be eligible to apply for a remedy, and that a sexual marriage-like relationship is not necessary. 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 common law. The doctrine of equitable trusts already applies to most of the cases which are being considered. The law is properly criticised for forcing applicants to have recourse to the current antiquated and costly process involved in such proceedings.
Madam Speaker, the Government is committed to providing encouragement of, and access to, alternative dispute resolution. Recently I expressed this Government's interest in establishing alternative ways of resolving disputes, rather than rushing into litigation, when I launched the "Mediate First" campaign. That campaign, which encourages those who are in dispute, whether it is a commercial dispute or a dispute relating to more personal matters, has the endorsement of the ACT Law Society as well as many other business and professional organisations in the ACT. The proposed legislation is based on the principle of mediate first. It requires that, on application, the registrar is to
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