Page 1118 - Week 04 - Thursday, 21 April 1994
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The legislation would place a limit on the making of an application for orders under this legislation, requiring application to the court within two years of the relationship ending. However, the court would retain the discretion to hear matters outside this two-year period if the hardship suffered by the applicant if it refused an extension would be greater than the hardship suffered by the respondent if it granted one.
The Bill also provides for a claim for what commentators have called child-care related maintenance and rehabilitation based maintenance. We believe, however, that the term "rehabilitation based maintenance" is not an appropriate one. It implies that the person receiving the maintenance is somehow deficient or disabled. Compensation is a more appropriate description of the basis of this form of maintenance than rehabilitation because the maintenance is in fact compensation for the applicant's contribution to the relationship, so we will use that term.
The child-care based maintenance can be claimed where the person has care and control of a child of the parties or a child of the other party and because of this is unable to support himself or herself. Compensation based maintenance can be claimed where the applicant's earning capacity has been adversely affected by the circumstances of the relationship and the applicant is therefore unable to support himself or herself adequately. The court must be satisfied that a compensation based maintenance order would enable the applicant to undertake a program of educational training and that it is a reasonable order in the circumstances.
Finally, the Bill provides that where an agreement has been drawn up at the beginning of, during or on the termination of a domestic relationship, and the court is convinced that the parties have been properly advised, the court must not make an order which is inconsistent with that agreement unless serious injustice would result. The value of a domestic relationship is that it is a form of certification that the domestic relationship exists. In itself it is a reminder to those involved that they have a responsibility to account for the property or financial resources they amass with the assistance of the other party.
A termination agreement is, likewise, a recognition that the relationship does not exist and thus a reminder that each is no longer obliged to be responsible to the other for such property or financial resources. The court would also have a residual discretion to set aside an agreement where it is satisfied that a serious injustice will result from enforcing its terms. It should be noted that nothing in an agreement will affect the power of the court to make an order with respect to the right to custody of, maintenance of, or access to the children of the parties who are the partners to the agreement.
The purpose of the Bill is to extend and clarify the application of principles of equitable trusts as they relate to domestic situations. The law would apply to de facto relationships as well as, say, the break-up of family relationships such as would exist with an adult son or daughter who has given up a career to provide the domestic care for a parent in need.
The Bill grants to the Magistrates Court jurisdiction to deal with applications, which is an extension of its jurisdiction. The Magistrates Court cannot presently deal with claims based on equitable trust principles, but we are now giving it that jurisdiction. This means that the law will be more accessible and less expensive to those with smaller property claims, or those with larger claims who nevertheless agree to accept
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