When the House of Lords first debated the Civil Partnership Bill, Lord Tebbit and others raised a simple question: why limit a right to register to same-sex (sexual) partners? If economic vulnerability arising from sharing a household — especially, for instance, when one party was caring for another — was an important factor[170] in extending legislative protection, why not allow others to register who defined their relationship not through sexual practices but through a shared commitment to live together and care for each other? There is a pattern here of Lord Tebbit et al trying to deflect the focus on equality onto a focus on economic vulnerability. The question was designed to derail the Bill, but it echoed concerns that had already been raised (for instance, inside the Law Society) with the economic vulnerability of domestic partners who lack a sexual nexus to their relationship. It is unfortunate that the figure of the ‘spinster sister’, developed by Lord Tebbit et al, caring for her (presumed) brother became reproduced in the gay press as the figure being used to try and detract from the importance of the right to equal treatment for same-sex partners. It was argued, as it has been in Canada,[171] that this was a simple diversion from the main issue — and yet, it is our contention that it does raise some very significant issues.
Within the frame that Lord Tebbit was raising the issue, a clear attempt to wreck the Bill, it was also a badly muddle-headed approach if it were to be taken at all seriously. The Civil Partnership Act is about registration of relationships, not about the recognition of economic responsibilities for the sole purpose of property redistribution. It therefore raises issues of quite a different order to protecting the economically vulnerable through property redistribution. The narrower frame of property redistribution, and the more likely frame of presumptive regimes rather than registration, is the beginning of our examination of recent developments in Australia, which take seriously the issue of non-sexual domestic commitment.
The Domestic Relationships Act was the first Australian legislation to omit any reference to a sexual element to a relationship: it adopts a general definition, ‘domestic relationship’, defined as a relationship between two adult persons where ‘one provides personal or financial commitment and support of a domestic nature for the material benefit of the other’.[172] No distinction (in the general frame of the Act) is made between de facto (sexual) relationships and others, for instance, care relationships. It further encompasses all these relationships regardless of whether the parties cohabit and ‘share the same household’ or not.[173] Since its introduction, no other sub-national legislation has adopted such a broad definition. While domestic relationships for the purposes of the Property (Relationships) Act and the Relationships Act cover de facto and other, especially ‘care’, relation — ships,[174] both statutes retain a distinction between the two types of relationships, thus affecting the convergence we mentioned above by distinguishing between rights given to de facto partners and lesser rights given to others. Both define a care relationship as one between two adult persons, whether or not related by family, where one or each of them provides the other with domestic support and personal care. A de facto relationship, however, is defined differently: s 4(1) of the Property (Relationships) Act defines the relationship as one between two adult persons who live together as a couple, while s 4(1) of the Relationships Act defines it as one between two adult persons who have a relationship as a couple. This means that cohabitation remains a prerequisite for inclusion of both opposite — and same-sex couples under the Property (Relationships) Act but not the Relationships Act.
The Relationships Act is significant in that it is the first Australian legislation to provide a dual (presumptive and registration) system for both de facto and care relationships. The registration system under the Relationships Act is less formal than that provided in the Civil Partnership Act, which sets up registration and dissolution procedures for civil partnerships that mirror those of marriage and divorce. Under the Relationships Act, a deed of relationship may be registered upon satisfying the conditions specified in s 11,[175] and it may be revoked on the death or marriage of either party, or on the application of either or both of the parties to the Registrar, or on order of the court.[176] This means that an overtly nonsexual relationship may be registered. At one level, this seems very similar to the reforms recently introduced in Alberta (discussed later), which also allow for both de facto and other relationships to be registered, as well as introducing a fallback scheme of recognition. However, a crucial difference is that, whereas in Tasmania a line is drawn between de facto relationships and others, in Alberta they are treated in the same way and the line is drawn between married partners and others. What all these emerging patterns make clear is that extensions to cover others tend to include the drawing of lines around a central nexus of either marriage or sexual partnerships, although the unwillingness to speak of sexual practices tends to lead to a fudge which allows for slippage into non-sexual partners. This slippage has to be distinguished from the more definite moves made in some jurisdictions to extend protection to the economically vulnerable, especially carers, even if they meet at a point where a shift in focus to economic vulnerability allows detraction from the issue of equality for sexual partners.
In a sense, the recent Australian reforms not only extend to non-sexual care relationships; they also reveal an emerging trend, following the lead taken in the Domestic Relationships Act, of shifting the focus from the status of marriage and marriage-like relationships to one based instead on emotional and financial interdependence as indicators of a legally recognised relationship.
The significance of this shift is that it appears to move away from the ‘sexual marriage model’ as the starting point, thus providing access to the law to a wider range of relationships. However, if we are right in our arguments regarding the ‘logic of semblance’, this access may be questionable, as the focus of reform remains confined to relationships which are perceived by the law as ‘signalling’ commitment in a manner comparable to marriage.[177] In so doing, the law continues to look at bilateral relationships: that is, to forms of partnership between two persons capable of projecting the same signal to commitment and long-term stability as marriage does. Further, the shift away from a sexual/marriage nexus is allowed for by re-engaging with a concern to protect the economically vulnerable, revealing a concern to strengthen ties of economic interdependency, again reproducing a marriage model or, rather, picking up on one of the major conventional functional aspects of a marriage model.