Reports of Committees
| Date | 01 January 1985 |
| Published date | 01 January 1985 |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00826.x |
REPORTS
OF
COMMITTEES
REPORT
OF
THE
NEW SOUTH WALES LAW REFORM COMMISSION
ON
DE
FACTO
RELATIONSHIPS
Introduction
IN
June 1983 the New South Wales Law Reform Commission
(N.S.W.L.R.C.) published its report on
de
fucto
relationships (more
usually referred to in the U.K. as “cohabitation”); in September 1984
the N.S.W. State Premier announced that the recommendations of
the report would be adopted in
full
by the State government. This
report is of interest not only for its substance but also for its
methodology, and both are discussed further below.
The legal rules which apply to
de
fucto
relationships have been
the subject of debate and discussion for some time. In the United
Kingdom and in many other countries, an increase in the number
of people living together outside marriage has been noted, along
with a tendency for such unions to be relatively stable, and in
many cases to involve child care responsibilities. Those living in
such relationships have referred
to
the courts problems about their
property, custody of their children, domestic violence and other
matters. Such cases have raised questions as to the adequacy of
present legal provisions for parties to
de
fucto
relationships, and
the extent to which such relationships should be recognised by the
law. There has been a proliferation of writing on the subject2
which has analysed the practical and legal problems, probed the
policy issues, pointed to the need for legal reform and/or argued
the difficulties associated with such reform. There have also been
clear indications in England, as there were in New South Wales,
that judges called upon to deal with problems of
de
fucto
relationships are unhappy with the present legal rules, at least in
so
far as they affect certain aspects
of
property law.3
~ ~~
M.
D.
A. Freeman and C. Lyon,
Cohabitation Without Marriage
(Gower,
1983)
contains an excellent review
of
these trends for the U.K. and several other countries.
See, for example, Freeman and Lyon,
op.
cit.;
Eekelaar and Katz
Marriage and
Cohabitation in
Contemporary
Societies,
Buttenvorths, Toronto,
1980;
Bottomley, Geive,
Moon and Weir
The Cohabitation Handbook,
Pluto Press (2nd ed.),
1984;
Clayton,
The
Cohabitation Guide,
Wildwood House,
1981;
Parker,
Cohabitees,
Barry Rose,
1981;
Parry,
Cohabitation,
Sweet and Maxwell,
1981;
Wade,
De Fact0 Marriages in Australia,
CCH Australia,
1981.
’
In England in
Burns
v.
Burns
[1984]
1
All E.R.
244,
the Court of Appeal found
itself unable to give a share in property to a woman who had lived in a
de
facto
relationship for
19
years performing domestic tasks, bringing up the children of the
relationship and contributing towards household expenses. The judgments all clearly
expressed dissatisfaction with the conclusion which the law constrained. Fox L.J., for
instance, concluded his judgment by remarking that the woman had “lived with (her
de
facto
partner) for
19
years as man and wife and at the end of it, has no rights against
him. But the unfairness of that is not a matter which the courts can control.
It
is a matter
for Parliament.” (At
m255e.l
Similar sentiments were exmessed in a series of cases in
New South Wale; which de‘ait with comparable problems,’ for instance
Murray
v.
Heggs
(1980)
6
Fam.L.R.
781.
61
62
THE
MODERN
LAW
REVIEW
[Vol.
48
Despite the existence of an area ripe for review and reform, the
subject of
de
fucto
relationships has not been seized upon with
alacrity by law reform bodies. The English Law Commission has
had the subject under consideration for some time. In
1979
it
noted that reform and rationalisation of the law on
de
fucto
relationships carried enormous problems, and that, after considering
an internal study paper summarising English reforms and those of
other countries, it had concluded that a review of the rules about
de
fucto
relationships might be appr~priate.~ However in the same
year, at an international conference on the subject of marriage and
cohabitation, Stephen Cretney, then a Law Commissioner, was
much impressed with the “formidable problems’’ and “conceptual
difficulties” of reform of this area of the law and stressed the
preliminary nature of the English Commission’s work.5 By
1982,
the English Commission had put in hand a preliminary survey of
the law on the enforceability of agreements between
de
fucto
partners but had still not decided if this should form part of a
general review of the law on
de
fucto
relationships.6 By
1983,
the
preliminary survey of the law on cohabitation contracts had been
completed, and the Commission noted that this survey, and recent
legal developments,’ suggested a need to identify legal problems
relating to
de
fucto
relationships which in practice cause hardship.
The Commission expressed its intention to give further thought to
how the issue might best be approached.8
Whilst the English Commission seems to have been overawed
for a considerable period by the difficulties of the task, the New
South Wales Commission has grasped the nettle and, although
faced with comparable problems, has produced a clear and
comprehensive set of proposals for reform.
I.
THE
NEW SOUTH WALES LAW REFORM COMMISSION
AND
ITS
METHODS
The membership of the Commission for the purposes of the
reference on
de
fucto
relationships reflects the innovative approach
of
both the Australian Law Reform Commission and state law
reform commissions regarding the involvement of persons with a
wide range of skills in the law reform process. At both federal and
state level, law reform commissions frequently employ academics
on secondment who have particular interest and expertise, either
as part-time commissioners or full-time for a limited period.
Nor
Law Commission, 14th Annual Report, 1978-79. Law Comm.
No.
97.
Law Commission, 17th Annual Report, 1981-82. Law Comm.
No.
119.
Law Commission. 18th Annual Report, 1982-83. Law Comm.
No.
131.
’
S.
Cretney, “The Law Relating
to
Unmarried Parties from the Perspective of a Law
’
The Commission referred
to
Burns
v.
Burns
then reported in
The
Times,
August 2,
Reform Agency” in Eekelaar and Katz
op.
cil.
p.357.
1983.
To continue reading
Request your trial