Cohabitation: what has Australia got that England hasn’t? By Jennifer Hollyer

A blog reader enquired recently about the cohabitation legislation in Australia, asking: “Are you familiar with it and its effects and what is your opinion?”  This was an interesting request, so I asked Jennifer Hollyer, a talented trainee solicitor here at Stowe Family Law and Christopher Othen, a senior associate at Sydney family law firm Barkus Doolan Kelly, to take a closer look.  Many thanks to both. Jenny has written a new post about their conclusions.

In a previous post, Cohabitation: England v Scotland, I predicted that the rather radical Cohabitation Bill put forward by Lord Lester in 2008 may have been too extreme for our government to accept into our legislation. I based this upon the fears that had arisen around the more moderate recommendations made by the Law Commission in 2007.

Had it been passed, the Cohabitation Bill would have given greater statutory protection to cohabitants, allowing the court to make a financial order if it felt that it was just and equitable to do so. The court would have had to take into account much of the same factors as it does for couples settling finances after the breakdown of the marriage, including the welfare of any relevant child, the length of cohabitation, contributions of each party (financial or otherwise), income and other financial resources and financial needs and obligations of the parties. Cohabitants would also have been given a chance to “opt out” of this process.

While this rather ballsy attempt by Lord Lester was supported by many family practitioners around the country, it still remains somewhat of a political impossibility for the foreseeable future. For some, the consequences of going further than the Law Commission’s conclusions would be too high.

A look at international variants of cohabitation law, however, can help us to view the situation in England and Wales in context. I have previously written about the Scottish system which does not give separating cohabitants the same rights as divorcing spouses, but does give weight to the fact that couples who have lived together for more than a year may be entitled to some financial rights, when one party has suffered an economic disadvantage due to the separation or if the defender has derived an economic advantage from the applicant’s contributions.

In Australia, cohabitation law goes further still. It has recently been amended following the passing of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.

Christopher Othen, a senior associate at Barkus Doolan Kelly family lawyers in Sydney, Australia, explains:

“Australian Family Courts deal with family property issues slightly differently from England and Wales.  Instead of looking at an overall list of factors including issues of contribution and other matters, the issue of how property should be divided because of contributions is dealt with first as a discrete issue.  This includes financial, non-financial and homemaking and parenting contributions.

“The old State and Territory laws for de facto couples for the most part stopped at this point.  It was a way of recognising homemaking and parenting contributions to a partnership which equity could not.  There were also limited maintenance rights.

“These rights are now extended to de facto couples, whether gay or straight, provided the relationship was registered (a service offered by a minority of States and Territories), there was a child born to the relationship, or the relationship lasted at least two years.  There are also jurisdictional requirements to be met as the laws do not cover all States and Territories in Australia.

“Western Australia’s laws had already changed to become equivalent to that for married couples.  Only South Australia has not joined the federal consensus; its de facto property law remains limited to weighing up the parties’ different contributions.

“The changes apply to all couples who separate after 1 March 2009.”

Cohabitants must satisfy the courts that they are in a de facto relationship and that they satisfy one of the gateway criteria. The legislation goes on to define a de facto relationship as one where the parties have been living together and are not married, are not related by family and having regard to all circumstances of their relationship.

When deciding whether it is a de facto relationship the court will consider various factors such as:

1. The duration of the relationship
2. The nature and extent of their common residence
3. Whether there is a sexual relationship
4. The degree of financial dependence or interdependence and any arrangements for financial support between them
5. The ownership use and acquisition of their property
6. The degree of mutual commitment to a shared life
7. Whether the relationship is or was registered under a prescribed law of a State of Territory as a prescribed kind of relationship
8. The care and support of the children
9. The reputation and public aspects of the relationship.

Once the above factors have been established, the cohabitees are entitled to the same kinds of settlement as spouses on a divorce, and the same maintenance rights.

Christopher Othen comments:

“I think the changes are very significant, particularly for gay people.  A gay couple can register a relationship in certain States (as they can in London) and if they separate even months later they have the same rights as if they had been married.  It’s a major advance, and both major political parties achieved it while dodging the difficult political issue of whether marriage is just between a man and a woman,

“But it has the effect for straight couples of removing a less committed form of relationship that used to be available to everyone; a very significant regulation of citizens’ private lives. It’s too early to tell how this will affect attitudes to living together.

“It remedies some obvious injustices (for example the primary carer of children sacrificing their career over a long relationship), but perhaps it creates rights for people, particularly in short relationships, well beyond what the people entering into them expect.”

The effect of this new legislation in Australia could be just what we need to push our legislatures to get a move on with the extension of new legal rights to cohabitants.  I think the State laws provide a good model for remedying the injustices caused to those who sacrifice careers to bring up the children of a partnership.

Some feel that such legislation could undermine the sanctity of marriage. Perhaps it is true that certain people may be more inclined to stay together as a partnership instead of getting married and some research has suggested that a partnership is, more often than not, less stable than marriage and more likely to break down. However we must bear in mind the interests of fairness for those who are vulnerable and who are left with nothing after the break up of a long relationship.

Surely it is time for our new Government to grab the bull by the horns? Until this vexed issue has been resolved we must continue to rely on Trust Law, which doesn’t apply to every cohabiting couple and is in no way adequate.

Jennifer Hollyer is a trainee solicitor at Stowe Family Law.

Christopher Othen began his legal career in England in 1999 and joined Barkus Doolan Kelly in 2005. He is admitted as a solicitor in England and Wales, and of both the Supreme Court of New South Wales and the High Court of Australia.