Reaching the limits of semblance logic: Constrained by bilateral thinking

Whilst we can see a stretching of the marriage model to include relationships not based within a sexual nexus, it is clear that the pattern of reform presumes a bilateral partnership.[178] If one aspect of the logic of semblance has been stretched to the point of loss, another (along with economic interdependency!) seems to remain. Why should we presume that a shared domestic household be limited to a bilateral relationship? A key question that arises is whether there is any rational and principled basis upon which the law should be limited to bilateral relationships. What potential is there in the existing Australian legislation, which exemplifies a broad approach, for moving beyond a bilateral model?

In defining all domestic relationships, whether between de facto partners or carers, the Property (Relationships) Act, Domestic Relationships Act and Relationships Act provide no scope for considering a wider range of home-sharing arrangements and confine the statutory regimes to bilateral relationships. The resolution of financial and property matters that arise on relationship termination have to be dealt with on a bilateral basis. This fails to acknowledge the existence of other more diverse and plural home-sharing arrangements. Cultural as well as economic factors (eg familial obligations to care for elderly parents; unmarried, divorced or widowed siblings living together or with parents; being priced out of the property market because of recent sharply increasing prices, etc) may vari­ously affect people’s reasons for sharing a household. Such arrangements clearly go beyond conventional bilateral models. For example, three unmarried friends or sisters, A, B and C, may decide to set up a shared household in the house belonging to C where they agree to provide each other with emotional and finan­cial support and care. The application of the Property (Relationships) Act, the Domestic Relationships Act or the Relationships Act would create a complex web of legal relationships which would be unlikely to fit the emotional and financial map of the household. The presumptive system of each of the Australian statutes would permit the matrix of relationships shown in Table 3.1.

For the purposes of registration under the Relationships Act, if A and B were to register their care relationship, they would be unable to register their respective care relationships with C.[179] Likewise, if A and C were to register a deed of their relationship, they could not register their respective care relationships with B.

In addition, since A, B and C are simultaneously in other domestic relationships (see Table 3.1), none of them may register any of the relationships unless they opt for exclusivity.[180] Yet, under the presumptive system, the Act is silent on whether or not there is a similar bar on the creation of concurrent domestic relationships. Similarly, in both the Property (Relationships) Act and the Domestic Relationships Act there are no express provisions to indicate that the creation of concurrent domestic relationships is prohibited. Thus, it is arguable that the statutes envisage that possibility but only under the presumptive system.

This raises the issue of how competing claims by parties in concurrent domestic relationships are then to be dealt with. At present, little help can be gleaned from the case law, as almost all of the disputes that have gone to court have been between de facto partners. The experience in the Australian Capital Territory, for example, points to an under-use of the Domestic Relationships Act by other con­stituents, such as carers. Nor have there been cases involving claims by parties in concurrent relationships, which has probably not been helped by the way in which the statutes have been drafted to focus on claims being made on a bilateral rather than a multilateral basis.[181] That being the case, while classifying the various rela­tionships may be simple enough, resolution of the respective and competing claims of A, B and C vis a vis one another on a bilateral basis is less likely to be so. For instance, in determining A’s claim against C, there will be little, or no, con­sideration of the countervailing claims that B may make against either A’s or C’s assets. Some may argue that this is only fair, since A’s entitlement, if any, should be determined by her contributions, financial and non-financial, towards C’s care and support, and her claims against B or vice versa should thus be immaterial. This, however, is purist logic, as it ignores the interrelatedness of A’s relationships with B and C respectively, which may not be easily disentangled and treated as separate and distinct, and abstracts A’s contributions by taking them out of the context of the three-party home-sharing arrangement.

The matters which the respective sub-national courts may take into consider­ation in determining whether or not a property adjustment order should be made also vary. At one end of the spectrum is the Property (Relationships) Act, which, being the narrowest of the statutes, allows the New South Wales courts to take into account only the contributions referred to in s 20(1)(a) and (b).[182] On the other hand, the Domestic Relationships Act and the Relationships Act allow the Australian Capital Territory and Tasmanian courts respectively to consider the financial needs and obligations of each party, and their respective responsibilities to support any other person as well as their future needs.[183] Reference to the parties’ ‘obligations’ and ‘responsibilities to support’ may suggest that there is some scope for considering any countervailing claims which A, B and C may make as against each other when determining what order to make as between A and C. However, the extent to which such countervailing property adjustment orders will fall within the meaning of ‘obligations’ and ‘responsibilities to support’ is unclear. This leaves a gap in the existing Australian legislation about whether or not the courts can efficiently deal with multilateral relationships.

Our concern then is that the logic of semblance still holds one important aspect to it which dominates the pattern of extension and inclusion. All the legislative programmes which we have found have been based on the nexus of a ‘couple’: a bilateral partnership sharing a domestic economy. This may, in part, be derived from the prominence of the registration model based on a marriage model and that a presumptive model in effect generally ‘piggy-backed’ on this model. But it is this derivation, we shall argue, that has a major limiting effect on the develop­ment of a more progressive and informed debate as to why certain domestic arrangements should be recognised for property redistribution purposes.