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De facto couples in legal limbo

De facto couples are in legal limbo after a parliamentary committee backed down on plans to give them the same legal status as couples who marry or enter a civil union.

The chairman of the select committee dealing with the Relationships Statutory References Bill, Tim Barnett, acknowledged that de facto relationships would generally lack the security and legal certainty of marriage or civil union.

A request that the Law Commission be asked to revisit the Property Relationships Act, in the way it treats de facto couples, could create further confusion. The act deals with the division of property when a relationship ends; it only applies to de facto couples who have been together at least three years, or have children.

Lianne Dalziel, a government member of the committee that considered the Relationships Statutory References Bill, said that legislation was implemented when civil union was not available to same sex couples and those who did not want to get married.

“We acknowledged as a committee that people who enter marriage or civil union are showing an unequivocal intention to change their status,” Ms Dalziel said. “But imposing obligations on people who decide to live together, but not enter marriage or civil union, may not be appropriate in some cases.”

Exactly what Men’s Centre warned about!

In a 1998 Men’s Centre North Shore submission to the Select Committee considering the Matrimonial Property Bill we warned about the inevitable problems that would arise if de facto relationships were treated the same as marriage.

When a couple take their marriage vows, they make a commitment, a contract, with each other and their community. The tradition that a marriage must be open to the public and usually involves parades and public displays reinforces this participation by the wider society beyond immediate friends and family. Society has a legitimate interest in promoting marriage because it socialises young adult males and leads to the best outcomes when bringing up children.

The contractual situation is not the same with de facto couples, who have by definition chosen to avoid making an explicit contract. The amended bill would cause a contract to come into effect by default simply because of the passage of time. The parties to this contract never formed an intent to make one, and many will consider themselves to be contracted under duress.

When exactly does a de-facto relationship start – when the couple first meet? The first time they sleep together? The moment they spend more than a certain number of nights together in any one week? What if the relationship remained unconsummated? This would be vitally important to establish with precision with so much potentially riding on whether the elapsed period was more or less than 1095 days. Is it workable?

How would the Court establish that a de-facto relationship has continued – are a couple who spend 2-3 nights a week together living in a “relationship in the nature of marriage”? What about four or five nights a week? What if a person spends 3-4 nights with one partner and 3-4 nights with another? Who would keep the records, which may well be required as evidence in court?

What if a couple live together for a while, separate for two years, then get back together again – would the clock keep ticking? What if they part regularly every few days because of employment conditions and spend much of their time apart? We can only conclude that these difficulties have not been fully appreciated.

The latest Select Committee report can be downloaded here.