One size fits all

A story in yesterday’s SMH is rather amazingly headlined “Prenuptial rights for same-sex, unmarried.”

It appears to be a paper-thin rewrite of a press-release designed, amongst other things, to drum up business for the family-law lawyer (quite a different thing from a family lawyer), Sally Nicholes, “principal of Nicholes Family Lawyers.”

Here are some of the highlights or lowlights, since nobody ever seems to click on links:

UNMARRIED and same sex-couples may soon be able to sign “prenups”, giving de factos many of the same legal rights as those who are wed.

Reforms to the Family Law Act before the Senate would allow agreements to be drawn up by de factos to cover spousal and child maintenance, as well as the division of property in the event of a relationship breakup.

Allow, or necessitate – you be the judge.

The bill was circulated in Federal Parliament on September 18 and is awaiting consideration by the Senate. If the legislation is passed, it is expected to be enacted by March.

That bit is, I think, out of date, so far as the Senate passed the bill with amendments on 18 October.

A de facto relationship can be heterosexual or homosexual and can exist even if one of the people involved is legally married to someone else or has another de facto partner.

The act goes beyond property matters:

The legislation will also mean that a court can force a partner out of the home if they are violent or acting inappropriately to the other person.

“This is pretty dramatic stuff and it is a big change,” Ms Nicholes said. “It is going to be huge, particularly with the spousal maintenance.

“What I have often found amazing is that someone could be in a de facto relationship for 30 years and have no obligation for spousal maintenance. But you could be married for one year and have more rights.”

Well, one person’s rights are another person’s obligations. I don’t know if I find it so amazing as Ms Nicholes does, because I always thought that was what marriage was about. Living together is often something quite different – but you will now need to go to a lawyer to do anything about that. How realistic is that?

She agreed that the amendments may make marriage a less attractive prospect for some couples.

“It just depends on how legally minded a couple are,” she said. “[But] some will come back to romance – to actually get married not for legal reasons, but romance.”

Funnily enough, that is the one point which I think is totally wrong in a glass-half-full-half-empty kind of way. The amendments will mean that, apart from the actual expense of a marriage and a formal divorce when or if the time comes, you will have nothing to lose from getting married at all, because you are all in the same procrustean bed for everything else.

In fact, it is not just pre-nups which may now be advisable, but mid-quasi-nups, because in an amazing and little-heralded step, the parliament has now enacted (subject to the amended bill now passing the Reps, though none of the the Senate amendments alter this particular aspect as far as I can make out) that all presently existing de facto relationships (including gay and lesbian ones) will, if they come to an end after the commencement of the proposed amendments to the Family Law Act, be subject to the jurisdiction of the Family Court (at least in NSW and in other states which have referred the power to the Commonwealth), not only to determine the division of property, but also to make ongoing orders for spousal or quasi-spousal maintenance, potentially for the rest of each party’s life.

Because de facto relationships do not depend on any juridical act, you might even be in a de facto relationship without realising it, and conversely think you are when in fact you are not. You’ll have to wait till later to see what the other party might think and do about it. The only way, so far as I can make out, that you can define the situation is if you can broach the matter with the other person (there may be more than one other person!) and reach agreement with them. But you will both have to agree that you are in fact in a de facto relationship, even if you want to bring it to an end, and for the deal to stick you will both have to go and see lawyers.

This, to me, is astounding. It is going to come as a shock to a great many people further down the road when it is too late to do anything about it. I wish the powers that be had paid a little more attention to Patrick Parkinson’s piece in the SMH in August, which although it sidestepped the question of gay marriage, made the point very clearly. As Professor P put it in his opening para:

The Federal Government must be very keen on marriage, despite the institution’s falling popularity in the population. It is so keen, it seems, that it wants to impose upon people all the financial obligations of marriage whether they have chosen them or not.

Quite frankly, I have very little faith in the capacity of the Family Court, schooled in the way of marriage, to make appropriate orders for de facto relationships which may well have been entered into and conducted on a totally different basis. Ms Nicholes’ comments are a worrying harbinger of their likely mindset.

One Response to “One size fits all”

  1. skepticlawyer » Law of unintended consequences… Says:

    […] a look at Marcellous’ excellent post on this issue. I wish I’d included it in my analysis when I initially wrote my post. My only excuse is that […]

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