Nandor Tanczos: Breaking Up Just Got Easier
Why The Greens Support The Property Relationships Bill
It's an exciting time - finally getting together with someone you're really into. You spend weeks in bed together getting to know each other well, sharing your secrets and dreams.
But even once you're an established couple, while it's still great to talk about sex - it can be hard to talk about the money.
Like most people you probably assume that if you break up you get half the stuff you bought together. But you are wrong. Under current law de facto partners are not automatically entitled to a share of relationship property.
The Property (Relationships) Bill - now being debated in the House - is going to change that. The bill is about creating fairness and consistency when people break up - whether they were married, de facto, single sex or same sex.
The Green Party supports this bill. People have a heap of different relationships these days. This bill recognises that. It is not about whether some relationships are better than others. It is about what happens to the property when it ends.
Most of the time people are reasonable enough and agree on what's fair. But people being what they are, we sometimes need an arbitrator of last resort to help resolve disagreements.
Recently there have been more and more cases going to Court after the breakdown of a de facto relationship. The Courts have taken a number of approaches to these disputes, each of which present their own set of problems.
Courts have looked to see what the intention of the parties were, but have found these intentions difficult to identify. Courts have also looked to the reasonable expectations of the parties involved. They have found it hard to say whether it is 'reasonable' to expect a share in property if one side says they will not give the other side anything.
The Principal Family Court Judge in his submission to the Select Committee said that "the limited and uneven remedies available... together with the growing number of de facto relationships are reasons why Parliament should legislate".
The bill simplifies all this. It says that when a de facto relationship of over three years duration comes to an end, the same rules that apply to married couples will also apply.
It recognises the non-financial contributions that people make as well as just the monetary ones and says that where one partner has sacrificed a career and earnings potential to raise a family and support their partner through education, that person can get a lump sum payment to compensate them.
It also says that an exception can be made to the principle of an equal division of property if it would be "repugnant to justice".
Property that you own before the relationship will remain your separate property and is excluded from division.
The exception is if you own a house and you both live in it. Then it is deemed the family home and is subject to equal sharing. If you don't want that to happen you can make an agreement, as I will explain below.
This bill will only affect de facto relationships of three years or more. This is a fair amount of time and does indicate that a serious relationship exists.
National and ACT have been trying to say this will apply to students who flat together and have sex occasionally. Firstly, this is not true when you look at how a de facto relationship is defined. Secondly, even if it was, who is going to go to court over a sofa? The law is only an issue when significant property, like a house or a car, is involved.
What's more, as I said, if you don't want to share equally you can opt out by signing a contract. While each partner needs independent legal advice for it to hold, the bill provides for a kind of blueprint agreement that will mean most contracts are very cheap or even free, if done through community law centres and Citizens Advice Bureaux. This agreement can be entered into at any time during the relationship.
Some people have said that the bill devalues the sanctity of marriage. I would say that sanctity is not derived from Parliament - a less sacred place being difficult to imagine! Sanctity is from another source entirely.
The bill does not "marry" de facto couples. The bill makes no difference to the legal status of marriage. That is defined in the Marriage Act and this bill does not affect that.
Married couples will be covered by the Marriage Act and their own vows. The bill does give extra protection for them because the equal property sharing regime applies from the first day of the marriage, not after three years as in the case of de facto relationships.
Basically, once you get past all the bollocks, I just think that a law that says that if you break up you should divide your stuff evenly, unless there are good reasons for not doing that or unless you have already agreed to do something else, is pretty basic justice.