A Relationships Register in Victoria, Mk II
This paper on relationship registries was issued by the Victorian Government on June 4th, 2007.
On 24 April 2007 the Premier announced that the Government will establish a relationships register based on the Tasmanian model in Victoria and that the Attorney General would consult interested groups on the detail of the scheme.
The scheme will include the opportunity for couples who have a mutual commitment to a shared life to have those relationships registered so as to give greater access to rights already recognised at law.
Broad support has been expressed for the introduction of a Tasmanian style scheme into Victoria. Support has been expressed by the Municipal Association of Victoria, the Law Institute of Victoria, the Australian Christian Lobby and the Victorian Gay and Lesbian Rights Lobby. The Government considers that it is important to maintain as broad as possible support for this measure as this will encourage other states to adopt similar legislation.
This paper provides a general summary of the Tasmanian Relationships Act 2003 and invites comment on some issues that arise in adapting a model based on the Tasmanian scheme into the Victorian context.
Comments on these issues are invited by 12 June 2007 and should be addressed:
Mr Chris Humphreys
Director, Civil Law Policy
Department of Justice
Level 24, 121 Exhibition Street
Melbourne, Victoria 3000
DX 210077
or email: LegalPolicySubmissions@justice.vic.gov.au
INDEX
1. Introduction 4
1.1 Background 4
1.2 Law reform to date 4
1.3 The need for a Relationships Register 5
2. Registration 6
2.1 What is registration? 6
2.2 Tasmanian registration model 6
3. Issues for consideration 8
3.1 Impact on Victorian laws 8
3.2 Specific Tasmanian model provisions 8
3.2.1 Maintenance 8
3.2.2 Agreements 9
3.2.3 Caring relationships 9
1. INTRODUCTION
1.1 Background
The Government will introduce a Bill into Parliament to establish a relationships register based on the Tasmanian model. If passed, the register would be likely to commence in 2008, once the necessary processes have been established at the Registry of Births, Deaths and Marriages.
The Tasmanian Relationships Act commenced in 2004. This Act allows significant relationships, irrespective of the gender of the members of the couple, and caring relationships to be registered with the Registrar of Births, Deaths and Marriages.
Several local councils in Melbourne have moved to set up relationships registers which provide for couples to formally register their relationships, irrespective of the gender of the members of the couple.
1.2 Law reform to date
In Victoria, the Government in recent years has undertaken a number of initiatives to remove discrimination against same-sex couples including:
in 2000, the Equal Opportunity Act 1995 was amended to prohibit discrimination on the basis of sexual orientation
in 2001, the Government enacted the Statute Law Amendment (Relationships) Act 2001 and the Statute Law Further Amendment (Relationships) Act 2001, which together amended over 57 Acts of Parliament to remove distinctions between married and all couples irrespective of gender
there are currently about 68 Acts that recognise domestic relationships which includes all couples irrespective of gender.
For example, under the Property Law Act 1958, a domestic partner may apply to a court for an order for the adjustment of interests in property of one or both of the partners, in the event of a relationship breakdown. A court will not make an order unless satisfied that the parties have lived together in a domestic relationship for a period of at least two years. However, a court may make an order if there is a child of the relationship or the partner applying for the order would suffer serious injustice if an order was not made and:
has made substantial contributions for which they would not otherwise be adequately compensated or
has the care and control of a child of the other domestic partner.
Following these reforms in most cases, the law treats all couples in the same way. The rights and obligations of partners in domestic relationships are recognised where there is a relationship between two adults, irrespective of gender, who are not married but who live as a couple on a genuine domestic basis.
However, in practice, for the purposes of these laws, a person may be required to prove that they are in a domestic relationship by presenting evidence about the nature of their relationship. For example:
the duration of the relationship
the nature and extent of common residence
whether or not a sexual relationship exists
the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
the ownership, use and acquisition of property
the degree of mutual commitment to a shared life
the care and support of children
the reputation and public aspects of the relationship.
1.3 The need for a relationships register
The establishment of a relationships register will mean that a person will not need to establish the existence of a relationship in each instance to enforce their rights under legislation. The registration of their relationship will be formal proof of their relationship. It will make it easier for couples and people in caring relationships to prove their relationship in order to exercise a legal right by simply showing a certificate of registration. For example, for the purposes of discussing a partners health information with a doctor in an emergency situation to effect proper treatment.
The establishment of a relationships register will foster equal treatment of all couples by providing an easy means by which the existence of their relationships can be demonstrated.
Legislation providing for a relationships register would be consistent with Victorias obligations under the Charter of Human Rights and Responsibilities Act 2006 which provides for the protection and promotion of human rights in Victoria. The Charter is founded on principles including that human rights:
are essential in a democratic and inclusive society that respects the rule of law, human dignity and equality and freedom
belong to all people without discrimination, and the diversity of the people of Victoria enhances our community.
A relationships register established by the State would provide a single coherent system operating in Victoria rather than a local government based approach which may vary from municipality to municipality.
2. REGISTRATION
2.1 What is registration?
There are a number of jurisdictions in Australia and internationally which provide for recognition of same-sex relationships.
However, Tasmania is the only jurisdiction in Australia which provides an ability to have significant and caring relationships registered through a relationships register.
In Tasmania, registration is a method by which all couples may, if they satisfy the criteria, register their relationship on a register at the Registry of Births, Deaths and Marriages. This occurs in a similar way to the registration of a birth, death or marriage.
The scheme that Victoria will introduce will differ from civil unions schemes proposed in Australia in that it will not require a ceremony, use of celebrants or exchange of vows in order for the relationship to be legally recognised. However registration provides the same advantages in terms of proving a relationship and thereby improving access to justice as do the civil union models that have been proposed in Australia.
Whilst registration does not provide for any official ceremony, it will continue to be open to couples to arrange their own relationship declaration events or to participate in those offered by some local governments.
Under the Constitution, the Commonwealth can legislate with regard to marriage. In 2004, the Commonwealth Government amended the Marriage Act 1961 to:
formally define marriage as a union of a man and a woman to the exclusion of all others
ensure that same-sex marriages are not recognised as marriage in Australia (inclusive of those performed under the laws of another country that permits such unions).
2.2 Tasmanian registration model
The Tasmanian model provides for the registration of personal relationships which include significant and caring relationships. In general terms:
a significant relationship is where two adults (regardless of their gender) are in a relationship as a couple and are not married to one another or related by family
a caring relationship is a relationship (other than a marriage or significant relationship) between two adults whether or not related by family, where one or each of whom provides the other with domestic support and personal care without fee or payment.
To make an application for the registration of a personal relationship to the Registrar of Births, Deaths and Marriages, the applicants are required to be domiciled or ordinarily resident in the State but do not need to live together. It does not provide for reciprocal recognition of gay marriages, civil unions or registrations in other jurisdictions.
The application must be accompanied by:
a statutory declaration from each applicant verifying that they consent to the registration, are not married, registered or in another significant or caring relationship
evidence of the identity, age and residency of each of the applicants
the prescribed fee ($133)
any other document or information the Registrar requires.
In addition, each applicant to a caring relationship must lodge a certificate from a solicitor that they have obtained independent legal advice about the implications of registration.
The Registrar after the expiry of 28 days from the lodgement of the application or provision of further particulars, must register or refuse to register the deed of relationship.
If a relationship is registered in Tasmania, the parties in the relationship are taken to be in a personal relationship for the purposes of Tasmanian law. That is, where Tasmanian laws make provision for a significant or caring relationship, or both, then the laws apply automatically to parties in a registered relationship without them having to provide any further proof of the existence of the relationship.
A deed of relationship will be automatically revoked if either party in the relationship dies or gets married. In the event of a relationship breakdown either or both parties can apply to the Registrar to have the registration revoked. Registration may also be revoked by a court order.
When a relationship breaks down, the Tasmanian Relationships Act also provides for parties to a significant or caring relationship to apply to a court for an order for the adjustment of interests in property of either or both of the partners, or for the granting of maintenance (although there is a presumption that maintenance should not usually be payable). An application must be made within two years of the relationship ending.
If a significant or caring relationship was not registered, someone wanting to make an application must show the court that they have been in such a relationship for a continuous period of at least two years. However, the court can make an order where the relationship does not satisfy the continuous two year period test if satisfied that:
there is a child of the partners referred to in the application or
the applicant has made substantial contributions to the relationship for which the applicant would not be otherwise adequately compensated if the order were not made or has the care and control of the other partys child and
the failure to make an order would result in serious injustice to the applicant.
Parties in a registered relationship can also apply for a property order without having to meet the two year test.
The Relationships Act also provides for personal relationship and separation agreements.
As at 18 May 2007, 85 significant relationships have been registered under the Relationships Act. Of these, 66 are same-sex couples and 19 male-female couples. There have been four revocations of relationships. One caring relationship has been registered.
3. ISSUES FOR CONSIDERATION
3.1. Impact on current Victorian laws
In examining whether the Government should legislate to introduce a relationships register based on the Tasmanian model, consideration will need to be given to the impact on current Victorian laws.
3.2. Specific Tasmanian model provisions
Consideration will also need to be given to whether specific Tasmanian model provisions should be adopted.
3.2.1 Maintenance
Under the Tasmanian Relationships Act, there is a presumption that maintenance should not usually be payable to a partner (of either a significant or caring relationship) in the event of a relationship breakdown. However, a partner can make an application for maintenance within two years of the partners ceasing to live together, as long as they are not in a personal relationship with, or have married, someone else.
A court may make a maintenance order if it is satisfied that the partner making the application is unable to support themselves adequately because their earning capacity has been adversely affected by, or for any other reason arising from, the circumstances of the relationship. A court will disregard any entitlement to an income tested pension or benefit of the party whose maintenance is under consideration.
A maintenance order will cease to have effect if either partner dies, or if the partner in whose favour the order was made marries, or registers a deed of relationship with, someone else.
3.2.2 Agreements
The Tasmanian model provides for personal relationship and separation agreements which are primarily for financial matters between partners. Personal relationship agreements can be made in contemplation of entering into, or at any time during, a relationship. Separation agreements can be made in contemplation of the relationship ending or after it has ended.
A court will generally not make orders different from those in the agreement, provided the agreement is written, signed by the party against whom the orders are sought and the parties have each obtained independent legal advice and a certificate to that effect is attached to the agreement. However, a court does have the power to vary an agreement or set aside a provision of an agreement in certain circumstances.
3.2.3 Caring Relationships
The Tasmanian model provides for the registration of a caring relationship, which is a relationship between two adults (whether or not related by family) where one provides the other with domestic support and personal care. In general, neither party can receive payment for the care of the other from employment or government departments. The parties cannot be married to one another and must not be in an existing significant or caring relationship. Both parties must live in Tasmania.
Each party to an application for the registration of a caring relationship must provide a certificate from a solicitor of the Supreme Court of Tasmania which states that they have provided legal advice to that party, independently of the other party to the relationship, as to:
The effect of the registration of the deed of relationship on the rights of the parties
The advantages and disadvantages, at the time that the advice was provided, to the party of the registered deed of relationship.