Page 1119 - Week 04 - Thursday, 21 April 1994
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a Magistrates Court decision. However, the legislation also requires the court and each legal practitioner representing a party both to allow and to encourage the party to settle matters by alternative means such as mediation or arbitration. This, plus associated requirements to provide information on mediation and the Government's support of mediation services in the ACT, will further make the task of those who seek fair and equitable property adjustment less expensive and onerous.
The response from the community to the discussion paper and draft legislation has been overwhelmingly supportive, and specific comments have been taken into account. I will at a later time be circulating to all members a schedule of the community consultation. We have removed the definition of de facto relationships which was in the exposure draft of the Bill, as this was considered an unnecessary distinction on the basis of gender. The definition, in referring to a relationship between a man and a woman, seems to unnecessarily put the issue of sex back into the Bill. Instead of the Bill being debated on issues of equity and convenience, the definition redirects attention to the contentious and divisive issues of government recognition of non-marital heterosexual and homosexual relationships.
The only other significant change we have made is to clause 38 of the Bill. We have altered that clause to make it quite clear that not only can a court make a declaration that a domestic relationship does or did exist at a particular time or during a particular period but it can also specifically declare that the relationship does or did not exist at a particular time or during a particular period. This is to provide parties with a clear court declaration that a relationship is over. We have done this in consideration of the fact that it is often important for those who have been involved in a personal relationship with another to have some material indication that the relationship no longer exists. This may be particularly useful for those who have been living in a potentially violent relationship, and I would point out that a study of domestic violence in the ACT which the Law Reform Committee released last year indicates a significantly higher rate of violence reported in de facto relationships than in marital relationships.
This Bill addresses the fact that those who live in domestic relationships are subject to the laws which, for the most part, are based on the traditional laws of property, which do not take account of matters such as unpaid labour in the home and have not evolved to do so. The Commonwealth Family Law Act takes account of those matters when dealing with property claims between spouses. However, it can deal only with legally married couples. There is no similar legislation for those living in domestic relationships in the ACT.
By limiting special consideration of indirect and non-financial contributions to property to those who are legally married, the law does not adequately recognise that families may take other forms than the traditional nuclear family of a married couple and their children. This is a relevant consideration for this Assembly in the Year of the Family.
This Bill is based on the current principles of equitable trusts in relation to domestic situations. Equitable trusts were established by judges at common law as a means of providing a remedy in situations where one person has provided another with a material advantage to their own detriment. What the Bill does is to firmly establish these principles and specifically apply them to domestic relationships on the general principles of common law and equity. The doctrine of equitable trusts already applies to most of the
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