Property (Relationships) Amendment Bill, Administration Amendment Bill, Family Proceedings Amendment Bill (No.2), Family Protection Amendment Bill
KEITH LOCKE (Green): This is very important legislation that will go some way to rectifying a number of current injustices. The economic disadvantage provisions that the legislation seeks to rectify have been one of the great injustices in our society, particularly in relation to those who have stayed at home to look after children-usually women. They are often disadvantaged when relationships break down. During the relationship they may be deprived of earning capacity because they are looking after the children. After the breakdown they are forced into a state of financial disadvantage. They have often opted out of a career to bring up the children, and the skills and experience that they have gained during that child-minding period are not acknowledged when they go back into the workforce. Studies show that the incomes of women decline by about 30 to 50 percent at the time of separation or divorce.
In some cases the equal division of property does not take into account the unequal distribution of childcare responsibilities, lost income-earning opportunities, and the differing abilities of those who have stayed at home and those who have gone out to work to participate in the labour market after a marriage breaks down. The select committee received many examples of mostly women who had ended up on the domestic purposes benefit or in low-wage jobs while their former partners had gone on to earn high incomes. One woman was on the domestic purposes benefit while her former partner was earning $100,000. After selling the family home and dividing the proceeds, she could not afford to keep up the mortgage payments on a property in the area, and she had to take the kids out of the local school and move to a more affordable area, with great disruption to the family.
Children should be no less protected if they are born to a de facto relationship. The Principal Family Court Judge in his submission to the select committee said: “The limited and uneven remedies available, together with the growing number of de facto relationships, are reasons why Parliament should legislate.” Under this new law, judges may have regard to the likely earning capacity of each partner and his or her ongoing responsibility for the children. Judges can award lump-sum transfers of property to redress those obvious economic disparities.
The committee also considered at length the issue of whether people should contract in or out of this legislation. In weighing up the issues, I think the select committee rightly suggested that there should be a contracting out regime. That is the best way to protect the weak and vulnerable. We are putting in place minimum standards to ensure justice. All members would have heard the concerns of de facto partners that a gold-digger situation might arise where all the hard-earned cash of one partner is taken away after 3 years, when the relationship-be it marriage or de facto-breaks down. I did a little bit of research, and I found that even under the current law judges take into account the contribution that spouses make to the family home. There is not an automatic 50:50 split of the family home.
For example, a marriage ended after 3 years and 5 months. The wife was in full-time employment and both partners lived rent free in accommodation that came with the wife’s employment. The wife had received $145,000 from a previous marriage settlement, while the husband brought to the marriage only a vehicle worth $13,500. During the marriage the couple bought a property worth $145,000. The husband made some non-financial contributions to the property, and the court decision was 80:20 in favour of the wife. So I think the courts will be responsible in these cases. There are many such cases. I do not think we will get a rush of gold-diggers making a claim on their partners’ property.
I do not think we will have the situation that Ken Shirley referred to. He is quite correct in saying there are a lot of old-age marriages taking place, but I am sure that if a partner in an old-age relationship makes it clear that he or she wants to pass on property to his or her children, that will be upheld by the court.
I think the passage of this legislation is not the end but the beginning of the real work. The Government must move quickly to provide people with information on how this law will work. Perhaps the Government could provide assistance to make sure that if people want to have a proper contract, it can be done at not too much expense. In the select committee a suggestion was made that there be a draft contract to make the legal expenses much less. There is also the question of the Government providing mediation and facilitation services to help people with their financial affairs and in drafting the appropriate contract, so that they find this an easy process to go through, and the legal costs are not great.
I also think there is a requirement to improve the work of the Family Court, and we in the Green Party have been advocating for some time a comprehensive review of the Family Court. In the debate on this legislation we have heard from all kinds of women’s groups, men’s groups, etc., and they are united in their concern about the way in which the Family Court is operating and the execution of its decisions. We want changes in this area, and we want more resources made available to the Family Court for mediation services.
This legislation is also quite important in legitimating different types of relationships other than the traditional marriage relationship. The two main categories that have been discussed under this legislation have been long-term, same-sex relationships and opposite-sex de facto relationships. I think both are equally as legitimate as the marriage relationship, and should be treated equally under the law. Just because someone is in a de facto relationship, as I am-and have been for over 20 years-does not mean to say that person’s rights, in terms of property division, should be any less than those who are formally married. There is a quite substantial prejudice in society against same-sex relationships, and it is important for us to recognise those relationships in this law, and to make sure that there is justice in terms of division of property. I think that goes a long way to overcoming the prejudice that still exists in society, and the Green Party welcomes that change.
More and more people, as speakers from all sides of the House have said in the debate on this legislation, are choosing the de facto option. The figure of 250,000, or thereabouts, has been thrown around. Why should those people suffer injustice? If there is injustice for married people in the proceedings of the Family Court, as outlined before this House, the same injustice exists for same-sex relationships and for opposite-sex de facto relationships. We should allow those relationships to be legitimately realised through a legal process with overheads that are as low as possible. That is why, in further discussion beyond this legislation, we want to make sure that the Family Court operates better, and has the proper services available to it to help everyone in that regard.