Professor Patrick Parkinson comments on the Federal Government's new Family Law Amendment Bill

4 August 2008

A new bill is before Parliament and, if passed, will change the law so that people in de facto relationships, including same-sex relationships, will be treated exactly the same as married people if their relationships break down, believes Professor Patrick Parkinson.

Contributing an opinion piece for the Sydney Morning Herald before he joins a team of experts at a Sydney hearing of the Senate legal and constitutional affairs committee tomorrow to consider the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill, Professor Parkinson argues that treating different forms of relationship equally does not mean treating them as if they were all the same.

"The problem with this new bill is that the Government has never commissioned any major research or population-wide opinion polls to determine whether people who have chosen not to marry would like all the consequences of marriage to be imposed upon them, or whether the population as a whole wants to see all the differences between marriage and de facto relationships abolished," he asserts.

"There are already laws that allow courts to divide the property of couples in de facto relationships when relationships break down, but these laws do not treat them as if they were married.

"The big difference, in NSW at least, is that the courts only divide the property based on an assessment of the parties' contributions to that property (including contributions as a homemaker and parent).

"For married couples, the court also looks at the future needs of each partner and their financial resources.

"That is a big difference," Professor Parkinson says.

Professor Parkinson writes that the Family Court treats marriage as "...a socio-economic partnership" where the longer it lasts, the less weight it gives to whoever brought the property into the relationship.

"Yet that can be quite at odds with the intentions of people in de facto relationships for whom 'what I have is mine and what you have is yours'

"That is a perfectly sensible and egalitarian way to organise a relationship, but it is not how the Family Court sees marriage.

"Do people who have chosen to live in a de facto relationship really want all their property subject to the broad discretion of an elderly judge who treats them as if they had been married?

"It is different when the couple have had a child together. Then we should put the needs of the child first.

"It may be also that some same-sex couples would like to be treated in the same way as married people; but otherwise, people's right to choose not to marry should be respected."

To view the entire article - De facto choice deserves respect.

Professor Parkinson was also quoted in a different article in the same edition - Till debt do us part: a rude shock for de factos

Contact: Greg Sherington

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