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Where am I now? Lawlink > Law Reform Commission > Publications > Hayley Katzen

SEMINAR PAPERS: A Discussion Forum on Relationships and the Law (Sydney, 7 July 2000)

Hayley Katzen

    [My thanks to Jen and Cynth who gave me permission to use their stories for this paper and who have taught me so much about the various meanings of relationships.]

I would like to acknowledge the Aora people, the Aboriginal owners of this land and thank them for the opportunity to speak here today.

Six years ago my friend Lisa died. Lisa had left a will. But as always with death there were decisions and jobs. Mary, Lisa's partner who had cared for her during her illness, was largely responsible for all these tasks. In true lesbian community fashion, however, she was assisted by one of Lisa's ex-partners. Mary had to contact Lisa's relatives to tell them that Lisa was dead; she had to arrange and distribute Lisa's estate and deal with funeral directors. Fortunately for us all, the funeral parlour's attitude was 'everything is normal'. Lisa and Mary's story is one without homophobic incident: there was a will and no one questioned it.

I like Lisa and Mary's story because it is an 'everything is normal' story. It is a story which shows that everyone is entitled to respect for their choices and support in times of need. As the Canadian Law Commission suggests 'Choice in building relationships and the respect of government for these choices are among the core features of a liberal democracy'.1

But Lisa and Mary's story is not representative of what happens to most lesbians and gay men. For many years, the lesbian and gay law reform lobby has been recounting the stories, real life, painful stories, about the appalling consequences that flowed from the fact that the committed and supportive relationships of lesbians and gay men were not recognised.

Now we don't need to tell those same horror stories - many of the relationships described in those stories are now recognised under the NSW Property (Relationships) Act. The NSW Government deserves praise for taking the brave and honourable step of recognising lesbian and gay relationships by passing a law which provides immediate protection to some people, particularly to couples who live together.

As an individual from the lesbian community, I thank the brave and committed Sydney activists who have waged the struggle to achieve this law reform. I am here today not as a representative of the lesbian and gay community. I am one of many individuals who have participated in a community law reform process. In 1992, as a young law student I joined the Lesbian and Gay Legal Rights Service. The service had been formed by lesbian and gay solicitors and barristers who regularly dealt with lesbian and gay clients who were severely disadvantaged because of the lack of recognition of their relationships. The telephone advice line we ran also revealed a litany of stories of the injustices of the legal system. At that time, the only law to which lesbians and gay men had recourse was Anti Discrimination law which generally provided little relief. The seriousness and the pain faced by these clients led to our decision to inquire into the options for the legal recognition of our relationships.

A consistent concern for many members of the group was that any recommendations needed to be informed by community views as well as the views of legal practitioners. We felt that our community could not be asked to make decisions without being fully informed about the ramifications of becoming recognised by the law and an appreciation of the different ways in which law can be changed to recognise relationships. The Bride Wore Pink is a community law reform document but at first it was part of a community legal education process.

After writing the first edition, we held consultations in Oxford Street, Glebe, lesbian Leichhardt and Blacktown. The issues were different when we spoke with each group. The Oxford street view was we need change now. Too many gay men had suffered when their partners had died of AIDS and the parents had stepped in and taken away both possessions and the right to grieve. Recognition signalled the end of that pain for many people in inner Sydney. However, many people were reluctant to see any recognition. They wanted to be treated as individuals and saw danger in inclusion in the mainstream system of relationships law which they saw as being based on concepts of dependence and disempowerment. The Blacktown group was mostly concerned about the consequences of living in a homophobic community and the danger of being outed by laws which presumed a relationship status.

We did our best to give our community information and to develop a community response to the legal problems. The recommendations for legislative change, and our sense of urgency, were motivated by the particular needs of the HIV Positive community. However, throughout the process, we were conscious of the impossibility of finding the 'right' legal response to a diverse community's dilemmas and lives. Even within the legally trained membership of the LRS there was a range of views. However, there was consensus on issues such as the need for the recommendations to be pragmatic, the need for some immediate changes and the need for equality for lesbians and gay men. We felt that we had to look at this issue because our community was suffering and because no government body had given it careful consideration. But as a group of volunteers we were also conscious that it was not our job. It was the job of an appropriately funded and equipped LRC. For these reasons we recommended, with unanimous support, that a LRC undertake an inquiry into relationship recognition. We recommended that the LRC consider three main issues:

    • the appropriateness or otherwise of bestowing entitlements on the basis of relationships,
    • the focus in relationships law on monogamy, exclusivity and blood relations, and
    • the need to ensure that all people with disputes arising from relationships have access to an inexpensive and accessible forum for the resolution of these disputes.
We wrote the BWP using the conventional legal form - we showed how recognition in different ways would lead to change because the law would automatically bestow rights and obligations as a result of a status attaching to a relationship. Many within the community felt that it was essential that our couple relationships were not invisible at law: our couple relationships must be recognised because the law recognises heterosexual couple relationships. Some of us were concerned that whatever model was chosen would ultimately be a 'straight world' model which would then be applied to our lesbian and gay culture. We were concerned about the appropriateness of such a superimposition. The Property (Relationships) Act does give couple relationships recognition. However, because the criteria are modelled on the heterosexual world, this form of recognition will only benefit lesbians and gay men who live together and who satisfy the criteria. The Act will not serve many of us who have chosen not to follow nuclear family foot-steps.

However, the NSW Government has gone further by recognising 'close personal relationships'. In the BWP, we recommended a significant personal relationship status which would exist between 'two persons who are emotionally, physically or psychologically interdependent and who wish to benefit each other and are prepared to accept certain obligations'. We did not envisage cohabitation or sexual intimacy as requirements. The definition proposed in the 1998 De Facto Relationships Amendment Bill was similarly focussed on interdependency. Clover Moore's Significant Personal Relationships Bill in 1997 focussed on mutuality and commitment and also sought to move away from cohabitation, sexual intimacy and sharing financial resources as the indicia of the relationship. However, the NSW Government ultimately settled on a 'close personal relationship' definition with cohabitation as a key feature.

Today, I want to tell you some stories and I want to ask some more questions.

I am going to get really personal. I have two significant relationships in my life, one with Jen and one with Cynthia. Both relationships are important to me. Jen is my partner of three years. Our relationship fits most of the criteria defined in the new legislation. But in some ways we do not fit. We each own our own homes which are two hours drive apart, our common residence is limited to the few days a month when we spend time together. We are financially independent although we help each other out when needed. According to the law, we do not fall within the definition of de facto relationship. Jen will not be able to make a claim on my estate were I to die without a will, nor could she make a claim under the Family Provision Act or make decisions about health if I were to be incapacitated. The emphasis on 'living together' creates anomalies and confusion for some lesbians and gay men. I would also argue that it creates anomalies for heterosexual people who choose to live in non-traditional relationships.

My other significant relationship is with Cynthia with whom I have lived for 8 years. We are not and have never been lovers. When we first discussed living together, we agreed that the purpose of our shared arrangement was to support each other to achieve our dreams. There was never an expectation of 'forever'; there was never an expectation that this relationship was more significant than the lover relationships we entered into. There was never an expectation that the arrangement meant that all assets and income were shared. Eight years later we have moved house together five times. Six years ago we moved from the city to the country together because it was what was right for each of us individually at that time. We have both benefited from the interdependence, intimacy and the personal support of the relationship.

Cynthia and I would not be categorised as a de facto couple. Although the presence of a sexual relationship is but one of the indicia of a de facto relationship, case law suggests that judges have been reluctant to stretch the meaning of de facto to encompass close relationships which are not of a romantic or sexual nature.2 So although Cynthia and I probably satisfy all the other criteria, we are not a de facto couple. And indeed, we would not wish our relationship to be defined as such. We are sisters, we are family. My relationship with Cynthia is very different from my relationship with Jen.

I am uncertain how to apply the recently enacted new category of 'close personal relationship' to Cynth and my situation. It is admirable that the NSW Government has acknowledged the need to provide for non-romantic non-marriage-like relationships. The question is whether we 'provide domestic support and personal care' for each other. The Parliamentary debates suggest that 'domestic support' may include attending to shopping, cleaning, washing and the like. We do these things for each other - that is what you do in a lesbian household. 'Personal care', however, was said to commonly consist of assistance with mobility or personal hygiene and generally involves ensuring the physical and emotional comfort. The Second Reading Speech also makes it clear that 'there is no intention to create rights and obligations between persons who are merely sharing accommodation as a matter of convenience, in the way that flat mates might. Rather, the type of relationship anticipated is that which might exist between a daughter and an elderly parent. So my question is at what point do we stop being categorised as flatmates and fall into the category of 'close personal relationship'? Who is the daughter? Who the elderly parent? And if we do fit the criteria, does that mean that my relationship with Cynth is recognised but not my relationship with Jen?

I appreciate that definition is inherently problematic particularly with concepts such as care and commitment. I also appreciate that the law and the courts depend on tangible proof. Cohabitation is a useful shorthand particularly because live-in personal relationships are more likely to give rise to benefit and obligation sharing. However, my concern with the current definitions is that they seem to take their flavour from a heterosexual model which emphasises cohabitation and an expectation of financial responsibility and dependence in an era where people increasingly organise their finances independently. The brave new 'close personal relationship' definition also seems problematic as it appears to imply a level of care which is more focussed on a one sided carer relationship than a relationship of mutual commitment and care between two adults. Like all new forms it is also problematic because it may be contrary to the parties' expectations about the relationship. Cynth and I anticipated that our sharing would be a daily choice not something which resulted from a tallying up process at the end of the arrangement. Are our expectations relevant now that the law may apply to us? Many of the people in my community are unaware of the changes and their implications. Without community education about the legislative changes, a status will be imposed on people who have had a very different expectation about what their relationship is about. But in addition to such education, we need dispute resolution options that are lesbian and gay friendly, efficient and cheap

I do not hold out my life-style as representative of all lesbians and gay men. I tell you these stories merely to indicate that lesbian lives may be very different from the conventional forms. But so too may heterosexual choices differ from these legal forms. There are many stories about heterosexual people, who have set up a community where they share labour and share care for children because they do not wish to live in nuclear families. My friend Mark describes how his relationship with Donna has changed - the relationship is no longer sexual and they no longer live together but they continue to share care of their child and support each other with life and decision-making.

When we wrote the BWP for the LRS, we were aware that whatever we recommended would suit only some people some of the time. We tried to identify the key elements of relationships, we tried to categorise our friends' relationships, our own and each time we came back to the same question: what is the purpose of the relationship status? Why do particular types of relationship lead to the entitlement to benefit and the obligation to assume responsibilities? Why is it in the government's interest to regulate some types of relationships and not others?

The legislative changes are a great start. But now that Parliament has acknowledged the range of relationships worthy of recognition, we need to shift our focus from superimposing by analogy a status on a range of life styles. Since the 1970s Australia has had a commitment to openness and accountability in the administration of State laws and policies. It seems to me that if we are to have a coherent, just and efficient legal system, we need to ensure that there is some openness and transparency about the purposes behind these laws. What is it the law is trying to do when it makes provision for people in crisis situations like death and illness? Why do we have laws which determine how property is divided? Is it to prevent the exploitation of an economically weak spouse? Is it to recognise and encourage economic interdependence and redistribution of wealth within the family? Are there different expectations about property distribution for lesbian couples, gay couples, heterosexual couples, close adult relationships?

As these purposes vary, so should the type of relationship and obligation. For example, laws such as the Human Tissue Act 1983 and the Anatomy Act 1977 are concerned with an emotional connection and respecting a person's wishes regarding a deceased person. Go back to my story. I haven't had much to do with my siblings for the last 10 years. Yet if I were to die intestate tomorrow, my biological siblings will have an automatic right to my property and a right to make decisions about my body under laws such as the Human Tissue Act 1983 and the Anatomy Act 1977. Jen will not be so entitled because our relationship is not recognised as a de facto relationship. Further, even if Cynth and I do fall into the close personal relationships category, she cannot inherit or participate in decision-making as the relevant statutes, such as the Wills Probate and Administration Act do not recognise close personal relationships. Cynthia can only bring the expensive Family Provision claim - an action few lesbians are likely to take. Why is it that blood relations are recognised even when they do not have a close personal relationship with the deceased? Factors such as sex, marital status, cohabitation and blood relations seem irrelevant to the purposes of much legislation.

Once we understand the purpose behind the law, we can consider that purpose in the context of different types of relationships to determine when various relationships are relevant to that statutory purpose. However, we also need to be cognisant of current social practices. Nowadays, relationships seem to have a built in obsolescence. So perhaps our emphasis needs to shift away from couples to individuals and we need to see policies that support individuals not the concept of a relationship. We need to ask ourselves whether close adult relationships produce such socially beneficial outcomes that government should give the relationships a distinct status with legal consequences. What it is about relationships that require protection and support? We need to gain insight into relationships and understand how much integration, mutuality and interdependence there is in different relationships.

Dependency appears to be crucial to this analysis. It also squarely raises the needs of children. Increasingly children grow up in homes without two biological parents. Some of these homes are lesbian homes where one of the women is the biological parent who automatically has parental responsibility. But often the outside world and the children themselves do not perceive the distinction between the biological parent and the co-parent. However, in the absence of Family Court orders, children are not entitled to benefit and the co-parent is not obliged to take responsibility. To ensure that our children are not disadvantaged, we need clearer definition of the rights and responsibilities of co-parents.

The issue of children highlights the lack of coherence between the purpose of laws and current legal forms. For years homophobes have asserted that lesbians and gay men do not make appropriate parents. To the extent that there is reliable research, studies show that lesbians and gay men do make good parents. The Department of Community Services seems to share this view as they seem delighted to give foster children into the care of lesbians - even when these women would not fall within the definition of de facto relationships. In 1997, the NSWLRC Inquiry into Adoption recommended that same sex couples should be allowed to adopt. This recommendation was never passed into law. Similarly, the Property (Relationships) Act makes no reference to adoption. My concern is that if we consider the purpose of the law: to care for children and to provide them with secure families, the failure to amend the law years ago and now, makes no sense.

Presumably most of us would prefer there to be congruence between the law and social practice to ensure stability, predictability and lack of exploitation. To some extent the inclusion of lesbian and gay couples in the definition of de facto achieves some of these aims. However, consistent with a free and just liberal democracy, we also need a system that respects choice in building relationships. There are many significant relationships that do not conform to the current statutory requirements. This lack of conformity highlights the tricky questions which need to be considered if we are to have a coherent legal system which supports individuals directly and which also protects and supports individuals indirectly by recognising their relationships.

As volunteers, the Legal Rights Service only consulted with people who came to the forums. To our shame, we did not specifically represent the views of Indigenous lesbians and gay men. The LRC now has the opportunity to delve more deeply into the issue, to define the purposes behind legislation and then to consult broadly with a range of groups about these laws and the types of relationships that may serve different statutory purposes. My hope is that the LRC will REALLY talk with Indigenous communities, lesbians, gay men, transgender people and heterosexual people and make recommendations that respond to the needs of individuals living in a diverse range of relationships.






FOOTNOTES

1. Law Commission of Canada Recognizing and Supporting Close Personal Relationships Between Adults: Discussion Paper, May 2000, p 11.

2. Kathy Sant 'Changing Relationships Law: The Property Relationships Legislation Amendment Act 1999, at p 11.



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