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Today's Agonising Dilemma for Family Lawyers

Today's Agonising Dilemma for Family Lawyers

Wednesday 30 Jan 2002 Stephen Franks Press Releases -- Justice, Law & Order

Family lawyers have a duty to advise many clients to break up otherwise stable and happy de facto relationships before Friday 1 February, says ACT Justice spokesman Stephen Franks.

"They are forced to give this advice by their duty to their client. One partner in each of up to 120,000 relationships will lose up to half his or her property to the de facto partner when Professor Margaret Wilson's new Property (Relationships) law takes effect on Friday.

"ACT strongly opposed these law changes all the way through their stretched out process in Parliament. Though initially introduced by National, all Select Committee members eventually saw they could be disastrous for women and children they were intended to protect. Labour Party whip discipline, at Ms Wilson's insistence, resulted in some Labour members voting against their consciences for the changes.

"Family lawyers' dilemma is in working out what is in the best interests of the people who seek their advice. People have often chosen not to be married for good reason. Many will be women eager to protect a house or other property carefully preserved from a disastrous earlier marriage.

"The so-called right to contract out of the new law may not work. For example, if the live-in boyfriend later says he signed the contract promising to respect the woman's ownership only because she threatened otherwise to end the relationship, the contract may be unenforceable for duress.

"Sadly, a more reliable safeguard is to end the relationship before Friday, and then perhaps invite the former partner back to a new relationship - but on condition of signing an opt-out. Lawyers told ACT when the Bill was passed this might be one of the few reliable ways of avoiding the Government's compulsory property transfer to the boyfriend. Since then we have not come across any more straightforward alternative. Lawyers will be reluctant to recommend it simply because of the sad effects on the people concerned, especially any children in the relationship.

"An engineered break up and renewal would not work if the ejected partner learns that it is a device. The other partner has to make it seem permanent.

"Couples with children will suffer the most. But they are the most likely to need such arrangements. The three-year period before the law applies to other couples does not apply where there are children in the household. They can be caught the moment the relationship forms.

"No matter how lonely she may be, the solo mother trialling a new relationship should end it before Friday if she wants to save her property from a claim by the boyfriend, unless she has in advance an entirely voluntary agreement from him.

"For the future, women in this position must get clear terms agreed before risking any kind of relationship that could be construed as a de facto relationship. And prudent men with assets will see women with children as the last choice of partners for any stable live-in relationship.

"However nutty this may sound it is just one of the consequences of this insulting and patronising decree from the Labour Government," Stephen Franks said.

For more information visit ACT online at or contact the ACT Parliamentary Office at

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