[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.