THE PRESS WEDNESDAY, DECEMBER 2, 1987. De facto shared property

Press, 2 December 1987, Page 20

THE PRESS WEDNESDAY, DECEMBER 2, 1987. De facto shared property

The Minister of Justice has opened to debate a sensitive and complex social question: should the Matrimonial Property Act be extended to apply to de facto relationships? Put simply, Mr Palmer is suggesting that the possessions of a couple who have lived together, without a legal marriage, should be divided equally between the partners in the event of the relationship breaking up. After more than a decade, the Matrimonial Property Act itself is still a far-from-perfect instrument for the fair division of property when a marriage ends in divorce. Intended generally as a protection for women who might otherwise receive little from a relationship to which they had contributed a good deal, the act has sometimes led to what looked like grossly unfair divisions of such property as businesses to which only one partner has made a significant contribution. To apply the act to relationships that had no standing in law, and had no formal commitment by the parties to one another, would be an uncertain business that did not necessarily make for more justice. A problem of definition would bedevil the change from the outset. What is a de facto relationship? For how long must two people live together, and in what circumstances, for the relationship to be recognised in law? Would the law recognise homosexual relationships of some duration? These matters deserve airing and Mr Palmer deserves support for having opened them to discussion. There are situations from time to time where two people have lived together, have not married, but have accumulated property together and, perhaps, have joint responsibilities. The administration of Social Welfare benefits already takes account of

some de facto situations; but that is not necessarily sufficient precedent for the law to take further account of such relationships. A compromise might be found that would extend the protection of the law to property acquired by people who live together outside formal marriage, without undue awkwardness of definition. Under the Matrimonial Property Act as it stands, a couple about to marry may opt out of the act; they can agree that its provisions will not apply if their marriage should end in divorce. A couple in a, de facto relationship might be enabled to make a choice the other way, to opt in for the protection of the act with a declaration that they want the provisions of the act to apply should their relationship end in separation. Certain safeguards about the duration and nature of the relationship would still need to apply.

If an unmarried couple were required to make a definite decision before they enjoyed the protection — and disquiet — conferred by the application of the Matrimonial Property Act, that would surely enhance a sense of responsibility in de facto relationships. Otherwise, it is not hard to think of quite remarkable complications and conflicts arising.

Would the protection of the law be extended to a long-serving mistress who had, in effect, contributed to a de facto relationship, at least for a portion of each week? Would she and a lawful wife be required to split their half of matrimonial property if a husband/lover walked out on them both? What proportion should each receive? There is plenty here for discussion before any change is made to the law.