Steve Fielding (Victoria, Family First Party) Share this | Hansard source

Family First believes that the important and overriding principle that should guide us when looking at this legislation is that marriage should keep its privileged status and should not be undermined. A second important principle is that relationships other than marriage should be recognised as ‘interdependent relationships’ rather than ‘marriage-like relationships’.

I am a great believer in marriage and the value of working on your relationship to stay married. I share the community’s great concern over the rate of marriage and relationship breakdown. I also understand the argument around wanting to improve the system to allocate property and provide for maintenance if a de facto relationship breaks down. Obviously, if a level of economic interdependence has formed then couples need help when they separate. The importance of a fair allocation of property is heightened when children are involved. But Family First comes at this from a different angle to that of the government, regarding these relationships as essentially ‘interdependent relationships’ rather than ‘marriage-like relationships’. Interdependent relationships could include same- and opposite-sex couples in sexual relationship but they could also include a couple of mates, or two sisters, who live together and share pay, housework, rent and other bills and who are genuinely financially interdependent.

Breakdown in de facto relationships produces financial disputes that need to be resolved, but does that resolution have to be found by treating de facto relationships the same as marriage? Society provides benefits to married couples, and the institution is encouraged and supported because marriage also provides benefits to society. Advantages are given to marriage to encourage and support it because marriage is such a social good. We know, from evidence to the Senate Standing Committee on Legal and Constitutional Affairs from the Australian Institute of Family Studies, that marriages last much longer than de facto relationships do. Different measures of this were pointed to, and one was that de facto relationships are three times more likely to end within five years than are marriages. The institute also agreed that children in de facto relationships do not do as well on developmental outcomes as children in marriages.

I agree with Professor Patrick Parkinson, who told the committee:

If we are to treat all those who have lived in a heterosexual de facto relationship for two years or longer as in a relationship equivalent to marriage then we further undermine any distinctiveness that marriage might have.

Marriage is more than just a relationship option. Family First is also concerned about specific clauses in the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. Subclause 4AA(2)(g) gives federal government recognition to registered relationships, which is recognition of a form of relationship that undermines the status of marriage. Subclause 4AA(5)(b) says that there can be a de facto relationship even if one of the people in the relationship is still married to someone else. That is a provision that demonstrably undermines marriage. It is absurd that, if one spouse in a marriage cheats on the other with a long-term affair, a breakup of that affair can lead to a claim on the property of the husband and wife in that marriage—so the husband or wife, unaware of the affair, ends up losing money to someone who threatened the marriage. The minister himself says that the bill:

… will give separating de facto couples the same rights as divorcing couples under the comprehensive Commonwealth family law system.

Family First is very concerned that this draft law does undermine the status of marriage.

The bill also raises important questions for de facto couples. The question of who is or is not in a de facto relationship is a big issue and is not clearly defined in the bill. The bill has a definition of de facto that requires the court to consider seven different criteria, but none of the criteria are definitive, so no-one knows if they are legally in a de facto relationship until the court says so. How is that workable? Under the definition proposed, people deemed to be in a de facto relationship do not need to have made an explicit decision to take on that status, so what one person may consider a casual, ongoing relationship may be deemed by another to be a de facto relationship with all the legal status that that could entail. For de facto couples, it removes choice. It states that they have legal status whether they have sought it or not. It is something that can sneak up on you without you ever deciding you want your relationship to have legal status. The obvious question is: do de facto couples want to be treated the same as married couples? If they do, it would seem likely that they would get married. If they do not, why is parliament, in effect, forcing them into a box they may not want to fit into?

One argument put to the Senate committee that examined the bill was that you can make an explicit decision to organise legal papers to opt out of being in a de facto relationship. But that depends on people being aware both that they might be classified as being in a de facto relationship and that de facto relationships will be treated the same as marriage for the distribution of property after a relationship breaks down. It seems ludicrous that people would have to go to the trouble of legally stating they are not in a de facto relationship to avoid being classified as de facto.

The other point, of course, is that few people contemplate their relationship breaking down. Signing papers that anticipate the breakup of your relationship can tend to take a bit of the magic out of life. It also requires couples who may be classified as de facto to go to some work and expense to, in effect, say they are not in that particular type of relationship. Most people, I would think, believe that if they have not taken the decision to walk down the aisle they will not be treated as if they have. If this bill is passed, a lot of people may get a rude shock. Family First agrees with the argument put by Professor Parkinson that the status of ‘de facto relationship’ takes on extra meaning and importance when children are involved. That is because the financial interdependence of the couple also needs to provide for the welfare of children.

I am a big fan of marriage, but I think people need to choose to be married rather than be deemed to be the equivalent of married. And I think that deeming de facto relationships to be the equivalent of marriage undermines marriage, which involves much more commitment and expectation than a de facto relationship. De facto relationships are interdependent relationships and should be recognised as such for the purposes of division of property. This bill has taken the alternative approach of giving de facto relationships the same status as marriage for the purpose of the division of property, which Family First cannot support.

Debate (on motion by Senator Stephens) adjourned.