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Reform Commission > Publications
> Associate Professor Owen Jessep, Financial Adjustment in Domestic
Relationships in NSW: Some Problems of Interpretation
SEMINAR PAPERS: A Discussion
Forum on Relationships and the Law (Sydney, 7 July
2000)
Associate
Professor Owen Jessep, Financial Adjustment in Domestic Relationships in
NSW: Some Problems of Interpretation
1.
INTRODUCTION
1.1 I
have been asked to comment on some of the problems of interpretation which
have arisen in the 15 years of operation of the De Facto Relationships Act
1984 (NSW). It should be stressed that the amendments of last year1
did not change in any respect the substantive principles applicable to
financial disputes. Rather, the existing Act was extended to a wider range
of claimants, namely all those in ‘domestic relationships’. This term is
defined to contain two categories. The first category is that of ‘de facto
relationship’ which now extends to same sex partners (‘two adult persons
... who live together as a couple, and ... who are not married to one
another or related by family’ – s 4). The second entirely new category is
that of ‘close personal relationship’, that is ‘two adult persons, whether
or not related by family, who are living together, one or each of whom
provides the other with domestic support and personal care’ (s 5). So long
as the applicant satisfies one or other aspect of the new definitions,
exactly the same substantive provisions will apply to the application.
1.2 Thus
any current difficulties of interpretation are likely to continue, but now
be visited upon the wider class of potential claimants. In what follows, I
will refer briefly to some issues in relation to property and maintenance
proceedings, and then consider the meaning of the recent redefinitions of
who is entitled to claim under the Act.
2. PROPERTY DIVISION
2.1 Undoubtedly the most pressing difficulty in relation to property
division is: what is the court allowed to take into account in dividing
the property? Under s 20, the court is given the power to make a
discretionary property adjustment, if it seems ‘just and equitable’ to do
so, having regard to:
(1) the direct and indirect financial
and non-financial contributions to the property or financial resources
of either party; and also
(2) the contributions, including those made
as homemaker or parent, made by either party to the relationship or to
the welfare of the family.
2.2 Anyone who has followed the
fortunes of married partners in the Family Court since 1975 will recall
that one of the persistent points of controversy in assessing
contributions under the Family Law Act 1975 (Cth) has been the manner of
valuation of the homemaker’s contribution, and how that should then be
compared with the ‘breadwinner’ contribution.2
So it is not surprising that similar controversies have occurred under the
NSW legislation. One recent example is the case of Grech v Jones (2000) DFC 95-227,
which achieved some newspaper and TV publicity earlier this year.
According to the Sunday Telegraph (5 March 2000), a woman (Ms Jones) was
given ‘just 16 per cent of a home she shared with her partner of 32 years
because she was only a “homemaker”’; he, in contrast, had provided the
purchase monies for the house, and was rewarded with 84% of the property.
Several commentators at the time expressed outrage at the decision.
Indeed, if 32 years produced a 16% share, then in order to qualify for the
half share that she had requested and felt entitled to, she would
presumably have had to live with the man for a full 100 years. This
certainly seems a long time. There are some peculiar aspects of the
judgment, and I understand that an appeal is likely. But, as often
happens, the media reports did not tell the full story. One aspect of
importance is that the Master hearing the application did not accept that
the couple had been in a de facto relationship for the whole 32 years. In
fact, on one reading of the judgment, they were only de facto partners for
11 of those years,3 and that finding
was closely linked to the limited portion of the property awarded to the
woman. There is a complicated issue here, of what constitutes a de facto
relationship, which I will return to at the end of these remarks.
2.3 Of
course, the question of how to value the homemaker contribution remains a
key concern, especially in the light of the Family Court experience. But s
20 presents further conundrums, beyond those that arise with s 79 of the
Family Law Act 1975 (Cth). As the NSW Court has repeatedly stressed,
whereas s 79 also requires the court to take into account the matters
listed in s 75(2) relating to the parties’ future economic position (age,
state of health, care of children, earning capacity, and the like), s 20
does not. So the question then becomes, as Priestley JA has succinctly
stated, does the NSW court decide what is a just and equitable division of
property by having regard ‘only to’, or by having regard ‘principally to’,
the different contributions of the parties (Evans v Marmont (1997) DFC
95-184, at 77,618). In other words, is there some limited scope for the
court also to consider things such as the financial circumstances of the
parties, their future needs, the length of the relationship, and like
matters? This point has caused much discussion, and sometimes heated
disagreements and even hostility, among the judges of the NSW Supreme
Court and Court of Appeal. Following the High Court’s refusal to become
involved in the interpretation of the NSW statute,4 a specially
enlarged Court of Appeal convened in 1997 to decide this question, in the
case of Evans v Marmont (1997) DFC 95-184.
2.4 Unfortunately, this decision did not end the disagreement. While
three of the five judges combined to dispose of the appeal, they did not
take the same view about all aspects of the decision. Further, the leading
judgment (that of Gleeson CJ and McLelland CJ in Eq) does not contain a
simple or single answer to the question posed by Priestley JA. That is to
say, by expressing agreement at different parts of their joint judgment
with each of two previous authorities, Gleeson CJ and McLelland CJ in Eq
appear to have endorsed both a very narrow view5 and a somewhat
wider view6 of what else can
be taken into account apart from contributions for the purposes of s 20.
It was therefore only to be expected, as has in fact occurred, that later
decisions would continue to disagree on this important matter. Thus, some
judges since the Evans v Marmont
case have been adamant that under s 20
the court may take nothing at all into account apart from contributions.7 Other judges, in
contrast, have been prepared to consider matters such as the parties’
current needs, their overall financial circumstances, and the like, as
part of the process of deciding what is a just and equitable division
having regard to the parties’ respective contributions.8
2.5 It
would serve little purpose to try and decide what s 20 really means. The
real question to be asked is: why are the criteria so narrow? Why not
broaden them? This, I imagine, will be a key part of the Law Reform
Commission’s enquiry. It is worth pointing out that of the seven
Australian jurisdictions which now have legislation dealing with financial
adjustment in non-marital relationships, only the first three to introduce
the legislation (NSW, Vic, and NT) have limited the specified factors to
contributions. The other four jurisdictions which have drafted their
legislation more recently (ACT, SA, Queensland and Tasmania) have all
widened the criteria that the court can take into account in dividing the
property. There is therefore no shortage of examples within the Australian
context that the Commission may wish to take into account. What was seen
as ground-breaking legislation 15 years ago may now have to be adjusted to
take account of the recent NSW experience, as well as developments
elsewhere.
2.6 The
interpretation of s 20 is by no means the only point of disagreement in
property division. Under the Act dates, and time limits, can be very
important. By s 6, it is not possible to bring a claim if the relationship
has terminated prior to the commencement of operation of the Act (that is,
mid-1985 for heterosexual de facto partners, but now mid-1999 for everyone
else covered by the new definitions). Further, by s 17, the relationship
must have continued for a minimum period of two years, and by s 18, the
claim must be brought within two years of the end of the relationship.
(There are exceptions to each of the last two time limits, but we can
disregard them for now.) Often the court has the complicated task of
determining when the relationship began, and for how long did it continue?
Once this has been decided, the question arises about contributions which
have been made, or other facts or events which have occurred, before the
relationship began. Can these earlier contributions be considered? Can
earlier events be referred to as part of the process of deciding what is
just and equitable? What if the court decides that the same couple have
had a series of de facto relationships (that is, on and off and on again,
as the years go by) – can it consider all of them together, or does each
one of them have to be examined separately to see if it complies with the
Act’s time limits and related requirements?
2.7 There
is widespread confusion here, both at the Supreme Court and the Court of
Appeal level. The narrowest view would have it that the court under s 20
can consider nothing but contributions, and only those contributions made
during the course of the relationship.9 If there happens
to be more than one relationship, they each have to comply with the time
limits and other requirements; otherwise they will be disregarded.10 Other judges
disagree, being prepared to consider earlier contributions, and earlier
events, and earlier relationships between the same couple, because not to
do so, in their opinion, would be unjust and inequitable.11 Again, some judges
are prepared to ignore periods of non-relationship which are relatively
insubstantial given the overall length of the couple’s common history and
connection,12 while other judges
are much stricter in their approach.13
2.8 A
related source of controversy concerns contributions made after the
relationship has ended. Can the court consider the fact that the parties
separated when the woman was pregnant, and that she has since had and is
now caring for the baby?14 Or the fact that
the property has increased in value between the date of separation and the
date of hearing?15 Or that one of the
parties has had a windfall, or some misfortune, since the end of the
relationship?16 Here too, some
judges say ‘no’,17 others say
‘yes’,18 and there is
little unanimity, and therefore little guidance, at the Court of Appeal
level.19
2.9 Again, I do not think there is much to be gained in debating the
meaning of the present words used in the statute. Rather, we should be
thinking about the point of it all. Why shouldn’t the court have a wider
discretion to take these matters into account, as indeed the court does in
the four jurisdictions mentioned previously (ACT, SA, Queensland and
Tasmania)? This is certainly something that the Law Reform Commission
should be seriously considering, with a view to clarifying and amending
the legislation where necessary.
2.10 There are no doubt other matters which could be mentioned, such as
the way in which the court takes into account a party’s expectations of
superannuation.20 But that could
take a seminar in itself. Judging from the caselaw, it may be beneficial
to amend the Act to provide some guidance as to how and why the court
should consider superannuation, and also dealing with the mechanics and
implementation of orders made as a result, but it is not really possible
to say more in this short presentation.
3. PARTNER MAINTENANCE
3.1 Back
in 1983, in their Report which led to the introduction of the 1984
legislation, the Law Reform Commission was very concerned to limit the
extent to which one de facto partner might have to pay maintenance to the
other.21 Reflecting this
concern of the Commission, the legislation only allows two grounds for the
award of maintenance, and any orders made are strictly limited as to
duration. Firstly, maintenance may be sought if a party cannot support
himself or herself adequately because of child care responsibilities (s
27(1)(a)), in which case the maximum duration of the order is until the
child turns 12, or 16 in the case of a child with disabilities (s 30(1)).
Secondly, maintenance may be sought because the relationship has adversely
affected the person’s earning capacity and an award of maintenance would
increase that capacity by allowing a training or education course to be
undertaken (s 27(1)(b)). Here, the maximum duration is a period of three
to four years (s 30(2)). In every case, a general prohibition on bringing
a claim for maintenance applied if, at the time of the application, the
party had entered a new de facto relationship or had married (s 29).
3.2 There
are very few cases of maintenance being awarded under the Act.22 There may be a
number of reasons for this. But one likely reason, apart from the
limitations contained in the Act itself, is the restrictive way in which
these provisions have been interpreted. Thus, there are decisions which
require the applicant to show that the inability to support oneself flows
exclusively from the ground selected, and is not affected by other
circumstances as well.23 Again, maintenance
has been refused because the nominated training course could not be
completed in the time period available for the award of maintenance,24 and would not
necessarily lead to full-time employment anyway.25 One judge thought
that bringing a claim based partly on care of children, and partly on lost
earning capacity, was a contradiction in terms,26 even though the
Act specifically contemplates this possibility (see s 30(3)). Finally,
maintenance has sometimes been refused on the ground that an award would
be inconsistent with s 19, which requires the court to try to finalise
matters between the parties and avoid further proceedings between them.27 Faced with
judicial interpretations of this sort, none of which, I should add, are
mandated by the wording of the relevant provisions, it is hardly
surprising that applications for maintenance have not been a popular
option in the fifteen years of the Act’s operation.
3.3 Is it
necessary to continue to construe the legislation so narrowly? Of course
not. On the other hand, rather than wait for more generous interpretations
from the court of what was originally hailed as remedial legislation, it
may be more sensible to seek changes to the Act. Here, too, help can be
gained from other States, especially Tasmania. In its recent legislation,
Tasmania allows claims for a variety of reasons arising ‘in whole or in
part’ from the circumstances of the relationship, and orders can be made
for a more extensive period.28 Whether NSW
legislation needs to copy all of these innovations may be debateable, but
certainly some changes seem indicated to re-activate the virtually dormant
current provisions.
3.4 As to
the inability to claim if one has since married or entered another de
facto relationship (s 29), it is time to review this section as well.
Since the reason for seeking maintenance must flow from the previous
relationship, it is not clear to me why the claim should automatically be
barred as soon as a new relationship is formed. A better solution would be
the follow the ACT example, by abolishing the provision, and instead allow
the fact of re-partnering to be taken into consideration, if appropriate,
at the time of making the order, or on an application for subsequent
variation on the basis of changed circumstances.29 In any event, the
recent changes, extending the ambit of the Act, have made the
disqualification even more anomalous. Section 29 now prohibits an order
if, by the time of the application, the applicant has entered another
‘domestic relationship’. This phrase, it should be remembered, includes
the new category of ‘close personal relationship’. Take a situation where
a woman separates from her de facto partner, is caring for their young
children, and then brings her ailing mother home so that the mother can be
cared for. As the woman now has a ‘close personal relationship’ with her
mother, she cannot seek maintenance for herself against her former
partner. This does not make any sense at all.
4. THE NEW DEFINITIONS
4.1 I
would like to finish by making a few observations on the new definitions
of who is eligible to claim under the Act. To reiterate, claims for
property division or partner maintenance are now possible by anyone who
has been in a ‘domestic relationship’. This includes those in a ‘de facto
relationship’, that is both same sex and opposite sex adult partners who
have lived together ‘as a couple’, and who are not married to one another
or related by family (s 4). It also includes those in a ‘close personal
relationship’, that is, ‘two adult persons, whether or not related by
family, who are living together, one or each of whom provides the other
with domestic support and personal care’ (s 5). Exactly the same type of
claims are available in either case.
4.2 My
first query is whether it should be necessary for the pair to live
together. There may no doubt be reasons for this, for example to limit the
number of possible claimants, and to focus on the situations in which
injustice or exploitation are thought more likely to occur, and in which
the common law may struggle to provide an adequate remedy. But it would be
useful at least to look at the ACT experience on this point. There, no
such requirement exists, claims being available to all those in a
‘domestic relationship’, an expression which includes both intimate and
non-intimate relationships. The definition used is a ‘personal
relationship ... between two adults in which one provides personal or
financial commitment and support of a domestic nature for the material
benefit of the other ...’ (s 3(1), Domestic Relationships Act 1994
(ACT)).
4.3 My
second query is whether the persons concerned should have to be ‘adult’?
Apart from ACT, no other Australian jurisdiction with this type of
legislation has such a requirement. New South Wales itself did not have
this requirement before the amendments of last year. I am not just
thinking here of the extensive assistance which underage children might
make to a parent’s property and financial resources, but rather the
possibility of intimate relationships involving one or more underage
partner. Some people may remember the unusual 1989 case of Green v Green (1989)
13 Fam LR 336, where a man died in Sydney, leaving behind (it was then
discovered), one wife, two de facto partners, and seven children. One of
the de facto partners, the mother of two of his children, had been brought
by the man to Australia from Thailand at the age of 13 or 14, and provided
by him with accommodation where he used to visit her. Given that the
relationship ended on the man’s death, this was not a claim under the 1984
Act. Rather, her claim for a share of the property was resolved under
common law (and equitable principles of constructive trust). My point,
however, is that had she separated from him before turning 18, she would
not satisfy either strand of the current definition of ‘domestic
relationship’, and hence she would have no claim under the Act. In the
event that she separated from him after the age of 18, some judges would
no doubt also have trouble taking account of contributions made or events
occurring prior to her becoming ‘adult’.30 I would therefore
put this forward as another item for the Law Reform Commission to take on
board.
4.4 My
third comment concerns the notion of ‘close personal relationship’.
Assuming that the two relevant people are adult, and live together, and
one or each of them provides the other with domestic support and personal
care, there does not seem to be any requirement of ‘exclusivity’. That is,
two adult siblings, let us say, who live with their ageing parents may
well be involved in close personal relationships with each other and also
with each of the parents. This is not really surprising, but it does
underline the fact that proving a ‘close personal relationship’ may not be
especially difficult, and that it is possible to have multiple ‘close
personal relationships’ at the same time. Again, while the current
definitions of ‘de facto relationship’ and ‘close personal relationship’
are mutually exclusive, in that the former covers ‘couples’ and the latter
does not, there is nothing to stop the same pair from moving from one
category to the other. What was once a ‘de facto relationship’ might
become a ‘close personal relationship’ (for example, if they have ceased
to be an intimate ‘couple’ but still reside together), and the same thing
may also occur in reverse. Perhaps, if we can revisit the case I mentioned
at the outset, the ‘16% after 32 years’ woman (Ms Jones in Grech v Jones (2000)
DFC 95-227) would be able to show that even if the de facto relationship
only lasted 11 years, some or even much of the rest of the time was spent
in a close personal relationship with him, thereby entitling her to a
larger and more realistic share of the property. For similar reasons, it
may sometimes be easier for an applicant to forget about trying to
establish a de facto relationship, and concentrate instead on the
apparently easier task of proving a close personal relationship.
4.5 My
final point follows immediately from the last one. Does NSW need a two
tier or two category definition of claimant for this particular piece of
legislation?31 Does this achieve
anything? Would things be more straightforward by introducing a single
definition (rather like in ACT) to cover both intimate and non-intimate
relationships, where the focus is on giving and receiving ‘domestic
support and personal care’ or some similar formulation?
5. CONCLUSION
5.1 In a
recent decision, Bryson J in the NSW Supreme Court commented that ‘human
relationships vary infinitely and are inherently capable of ambiguity’
(Burden v Cottee, unreported, 31 July 1998, BC 9803512, at 3). This may
well be true, but it is also the case that when those relationships break
down and end in strife and bitterness, the arguments about financial
matters which surface are often very similar and very predictable. It was
to deal with those arguments between heterosexual de facto partners that
the 1984 legislation was introduced. With the legislative amendments of
last year, NSW has now moved to extend that remedial legislation to a much
wider range of domestic relationships. What is now needed, and fortunately
the Law Reform Commission is now geared to provide, is a close examination
of the substantive principles of the legislation, in the light of
developments elsewhere, both inside and outside Australia, with a view to
making changes, and updating and fine-tuning as may be necessary.
FOOTNOTES
1.
Property (Relationships) Legislation Amendment Act 1999 (NSW).
2. See eg Mallet v
Mallet (1984) 156 CLR 605, and
Marriage of Ferraro (1992) 16 Fam LR 550. For comment, see eg H
Charlesworth, ‘Domestic Contributions to Matrimonial Property’, (1989) 3
Aust Jnl of Fam Law 147-60, and L Young, ‘Sissinghurst, Sackville-West and
Special Skill’, (1997) 11 Aust Jnl of
Fam Law 268-85.
3. Grech
v Jones (2000) DFC
95-227, McLaughlin M at 77,272-3.
4. The High Court refused to appeal in Dwyer v Kaljo (1992)
DFC 95-127, and in Wallace v Stanford
(1995) DFC 95-165.
5. Evans v Marmont
(1997) DFC 95-184, Gleeson CJ and
McClelland CJ in Eq, agreeing with Mahoney JA in Wallace v Stanford (1995) DFC 95-165.
6. Evans v Marmont
(1997) DFC 95-184, Gleeson CJ and
McClelland CJ in Eq, agreeing at 77,606-7, and 77,610 with Hodgson J at
first instance in Dwyer v
Kaljo (DFC 95-053, at
75,599-600).
7. Stroud v
Simpson-Phillips (unreported, 1 October
1999, BC 9906334), McLaughlin M at para
26;
Wakeford v Ellis (1998) DFC 95-202,
McLaughlin M at 77,812-3; Flett v Brough
(1999) DFC 95-211, McLaughlin M at
77,107-8; Fuller v
Taaffe (1997) DFC 95-198, Rourke J (FC
of A) at 77,749; McKean v
Page (1999) DFC 95-218, Ellis ACJ, Kay
and Mushin JJ (Full FC of A) at 77,190;
Theodossiou v Cui (unreported, 3
December 1997, BC 9706888), Young J at 27.
8. Gazzard v Winders
(1998) DFC 95-209, Beazley JA at
77,867-8; Stelzer v McDonald
(1999) DFC 95-215, Bergin J at 77,155;
Richardson v Hough (1998) 24 Fam LR 94, Santow J at 115; and compare Powell
JA in Gazzard v Winders (1998) DFC 95-209, at 77,864.
9. For examples, see Roy
v Sturgeon (1986) DFC 95-031, Powell J
at 75,366-68; Wallace v Stanford
(1995) DFC 95-165, Mahoney JA at
77,395; Conn v
Martusevicus (1991) DFC 95-109, Vincent
J (SC VIC) at 76,399; Fiket v Linco
(1998) 23 Fam LR 272, Thomas J (SC
NT); Del Gallo v Frederiksen
(1999) DFC 95-220, Macready M at
77,222-3.
10. Lipman v
Lipman (1989) 13 Fam LR 1, Powell J at
24; Fotheringham v Fotheringham
(unreported, 28 August 1998, BC
9804285), Powell JA at 4, 18-21; Stroud
v Simpson-Phillips (unreported, 1
October 1999, BC 9906334), McLaughlin M at para 16; and compare
McKone v Maretta (1999) DFC 95-213, Macready M at 77,129-133, and
77,135.
11. See for example Griffiths v Brodigan (1995) 20
Fam LR 822, Chisholm J (FC of A) at 834-35; W v W (1997) 21 Fam LR 343,
Nicholson CJ, Finn and Maxwell JJ (Full FC of A), at 352; Stelzer v McDonald (1999) DFC 95-215, Bergin J at 77,154-55; Campbell v Campbell (unreported, Court of Appeal, 16 April 1997, BC 9703070), Brownie
AJA at 13-14. For a discussion of some of these cases, and a comparison
with the approach under the Family Law Act 1975 (Cth), see D Sandor,
‘Accounting for Care Contributions before Cohabitation in Property
Settlements’, (1997) 11 Aust Jnl of Fam
Law 223-30.
12. See for example Burrowes v Chan (unreported, 31
October 1997, BC 9705749), Macready M at 10-11; Fotheringham v Fotheringham (unreported, 28 August 1998, BC 9804285), Stein JA at 2;
Gazzard v Winders (1998) DFC 95-209, Stein JA at 77,870, and Beazley JA at
77,868.
13. See for example Fotheringham v Fotheringham (unreported, 28 August 1998, BC 9804285), Powell JA at 4,
18-21.
14. Foster v Evans
(1997) DFC 95-193, Bryson J at
77,681.
15. Wallace v Stanford (1995) DFC 95-165, Mahoney JA at 77,395; Miglietta v Biesiada (2000) DFC
95-226, McLaughlin M at 77,267; Wakeford
v Ellis (1998) DFC 95-202, McLaughlin M
at 77,812-3.
16. Wallace v Stanford
(1995) DFC 95-165, Mahoney JA at
77,395; Theodoropoulos v Theodosiou
(1996) DFC 95-169, compare Priestley JA
at 77,447-8, and Powell JA at 77,454.
17. Roy v Sturgeon
(1986) DFC 95-031, Powell J at
75,366-68; Theodoropoulos v Theodosiou
(1996) DFC 95-169, Powell JA at 77,454;
Wallace v Stanford (1995) DFC 95-165, Mahoney JA at 77,395 and 77,401;
Miglietta v Biesiada (2000) DFC 95-226, McLaughlin M at 77,267;
Flett v Brough (1999) DFC 95-211, McLaughlin M at 77,107-8; and
Howland v Ellis (unreported, 26 November 1999, BC 9907769), at para
58.
18. See for example Foster v Evans (1997) DFC
95-193, Bryson J at 77,681; Theodoropoulos v Theodosiou (1996) DFC 95-169, Priestley JA at 77,447-8; Griffiths v Brodigan (1995) 20 Fam LR 822, Chisholm J (FC of A) at 834-35;
Fuller v Taaffe (1997) DFC 95-198, Rourke J (FC of A) at
77,747-99.
19. See for example the judgments in Theodoropoulos v Theodosiou (1996) DFC 95-169.
20. See for example Green
v Robinson (1995) 18 Fam LR 594; and
Gazzard v Winders (1998) DFC 95-209.
21. NSW Law Reform Commission, Report No 36, ‘De Facto
Relationships’ (Sydney 1983), Ch 8, pp 161-65.
22. For successful claims, see for example, D v McA (1986) DFC
95-030, Powell J at 75,358-9; Foster v
Evans (1997) DFC 95-193, Bryson J at
77,681 (lump sum maintenance); and Keene
v Harkness (1997) DFC 95-179 at 77,558
(lump sum maintenance).
23. See Todoric v Todoric
(1990) DFC 95-096, Powell J at
76,241-2; Parker v Parker
(1993) DFC 95-139, Young J at
76,719.
24. Todoric v Todoric
(1990) DFC 95-096, Powell J at
76,242.
25. Todoric v Todoric
(1990) DFC 95-096, Powell J at
76,241.
26. Todoric v Todoric
(1990) DFC 95-096, Powell J at
76,241.
27. The Court of Appeal rejected this argument in
Keene v Harkness (1997) DFC 95-179, Cohen AJA at 77,555, but it was
nevertheless accepted by McLaughlin M in Howland v Ellis (unreported, 26
November 1999, BC 9907769), at para 84.
28. See De Facto Relationship Act 1999 (Tas), ss 23,
26.
29. See Domestic Relationships Act 1994 (ACT), ss 19(2),
23(2).
30. See for example the cases mentioned at note 9
above.
31. The difference is of course important for other
legislation – see the Schedules to Property (Relationships) Legislation
Amendment Act 1999 (NSW).
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