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Relationships Amendment (Caring
Relationships) Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
The Relationships Act 2008 establishes a Relationship Register for the
registration of domestic relationships in Victoria. The Relationships Act
2008 also provides a single location for statutory requirements governing
property matters in the event of a breakdown of a domestic relationship and
amends Victorian Acts that currently recognise domestic relationships, in
order to make provision for registered relationships.
The Relationships Amendment (Caring Relationships) Bill 2008 (the Bill)
amends the Relationships Act 2008 to allow for the registration of caring
relationships on the Relationships Register and for the recognition, where
appropriate, of registered caring relationships across the Statute Book.
The purpose of the Relationships Register, for both domestic and caring
relationships is to allow people to register one relationship, their primary
relationship, which will be recognised as such for the purposes of Victorian
law. Like registered domestic relationships, registration of a caring
relationship will provide conclusive proof of the relationship where caring
relationships are recognised under Victorian law.
Also like domestic relationships, the Bill allows partners in registered caring
relationships that have broken down to apply to a court for the adjustment of
interests in the property of the relationship and for maintenance, and allows
people to enter into relationship agreements in relation to a caring
relationship.
Lastly, the Bill makes consequential amendments to a number of Victorian
Acts to clarify that those Acts, while applying to partners in domestic
relationships, do not apply to partners in caring relationships.
561282 1 BILL LA INTRODUCTION 11/11/2008
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill. The purpose of the Bill is to
amend the Relationships Act 2008 to--
· provide for the registration of caring relationships on the
Relationships Register established by that Act;
· provide for the adjustment of property interests between
partners who are in, or have been in, a registered caring
relationship;
· provide for the rights to maintenance of partners who
are in, or have been in, a registered caring relationship.
The Bill also makes consequential amendments to certain other
Acts.
Clause 2 provides for the commencement of the Bill. The Bill, including
the consequential amendments to other Acts in Schedule 1 to the
Bill, will commence on a day or days to be proclaimed.
However, the Bill and the consequential amendments will come
into operation on 1 December 2009 if not proclaimed before that
date.
Clause 3 provides that in the Bill, the Relationships Act 2008 is called the
Principal Act.
PART 2--AMENDMENTS TO PRINCIPAL ACT
Clause 4 amends section 1 of the Relationships Act 2008 so that the
purpose of the Act includes--
· to establish a relationships register in Victoria for the
registration of domestic relationships and caring
relationships;
· to provide for adjustment of property interests between
caring partners who are in, or have been in, a registered
caring relationship and the rights to maintenance of
caring partners who are in, or have been in, a registered
caring relationship.
It is noted that an existing purpose of the Act is to provide for
relationship agreements.
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Clause 5 amends section 3 of the Relationships Act 2008 by inserting
definitions of registered caring relationship and registered
domestic relationship, and by amending the definition of
registered relationship so that it refers to a registered domestic
relationship or a registered caring relationship.
Clause 6 amends the heading of Chapter 2 of the Relationships Act 2008
so that it reads "REGISTRATION OF DOMESTIC
RELATIONSHIPS OR CARING RELATIONSHIPS".
Clause 7 amends section 4 of the Relationships Act 2008 so that the
purpose of Chapter 2 of the Act is to establish a relationships
register in Victoria for the registration of domestic relationships
or caring relationships.
Clause 8 amends section 5 of the Relationships Act 2008 by inserting
definitions of legal practitioner's certificate and registrable
caring relationship.
A registrable caring relationship means a relationship, other
than a registered relationship, between two adults who are not a
couple or married to each other and who may be related. It is a
relationship where one or each of the partners provides personal
or financial commitment and support of a domestic nature for the
material benefit of the other. Partners in a registrable caring
relationship do not necessarily have to be living together.
However, a registrable caring relationship does not include a
relationship in which a person simply provides domestic support
and personal care to the other person for fee or reward, such as
on a commercial or for profit basis.
Given the insertion of the definition of registrable caring
relationship, clause 8 also amends the definition of registrable
relationship in section 5 so that it refers to a registrable domestic
relationship.
The amended Act will therefore contain two separate definitions
of a registrable domestic relationship and a registrable caring
relationship.
Clause 9 amends the heading of section 6 of the Relationships Act 2008
so that it reads "Application to register a registrable domestic
relationship or registrable caring relationship".
Clause 9 also amends section 6 so that it applies to persons in a
registrable caring relationship. The amended section provides
that persons who are in a registrable caring relationship may
apply to the Registrar of Births, Deaths and Marriages for
registration of their relationship. As is the case for applications
to register a registrable domestic relationship, the persons in the
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registrable caring relationship must live in Victoria and cannot
be married or in relationship that is already registered in Victoria,
or in another relationship that could be registered in Victoria.
This means that a person cannot be in a registered domestic
relationship and a registered caring relationship at the same time
or in more than one registered relationship of the same type at the
same time.
Clause 10 amends section 7 of the Relationships Act 2008 by inserting a
new paragraph (ba). The new paragraph provides that in the case
of an application for registration of a registrable caring
relationship, each applicant must first obtain independent legal
advice about the consequences of registration. Independent legal
advice means that the applicants must obtain legal advice
separately from each other and from different legal practitioners.
The remaining application requirements in section 7 otherwise
apply to applications by persons in registrable domestic
relationships and registrable caring relationships in the same way.
That is, an application for registration must include or be
accompanied by a statutory declaration that each party consents
to registration and meets the other requirements for registration.
The application must also be accompanied by evidence of the
identity and age of each applicant. A fee will be payable for
making the application.
Clause 11 amends section 10 of the Relationships Act 2008 so that it also
applies to applications to register a registrable caring relationship.
The section provides that, unless an application for registration is
withdrawn, the Registrar of Births, Deaths and Marriages may
register the relationship within a reasonable period after the
expiry of 28 days from the date the application was made or
after further information required by the Registrar is provided.
Where the Registrar is registering a registrable domestic
relationship, the Registrar must register the relationship as a
registered domestic relationship. Where the Registrar is
registering a registrable caring relationship, the Registrar must
register the relationship as a registered caring relationship.
The Registrar may also refuse to register the relationship.
Clause 12 amends section 27 of the Relationships Act 2008 so that it also
allows the Registrar of Births, Deaths and Marriages to provide
additional services in connection with the provision of services
relating to the registration of a registrable caring relationship.
The additional services include providing information from the
Relationships Register, or from other records, in the form of a
decorative certificate. The Registrar may charge a fee for the
additional services.
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Clause 13 amends section 32 of the Relationships Act 2008 so as to require
the Registrar of Births, Deaths and Marriages to provide a report
to the Minister about the number of registrable domestic
relationships and registrable caring relationships registered
during a financial year, and about the number of registrations of
registered domestic relationships and registered caring
relationships revoked in that year.
Clause 14 amends section 34 of the Relationships Act 2008 so that the
purpose of Chapter 3 of the Act reflects the Chapter's provision
for caring partners. Chapter 3 of the Act is entitled
"RELATIONSHIP AGREEMENTS, PROPERTY AND
MAINTENANCE" and the amended purpose of the Chapter
is to provide for--
· the effect of relationship agreements made between
domestic partners or between caring partners, where
Part 3.2 defines a caring partner to be a person with
whom the person is, or has been, in a registered caring
relationship, or with whom the person is contemplating
entering into a registered caring relationship;
· the adjustment of interests in property between domestic
partners or between caring partners, and the rights to
maintenance of domestic partners or of caring partners,
where Part 3.3 defines a caring partner to be a person
with whom the person is or has been in a registered
caring relationship.
Clause 15 amends the definitions in section 35(1) and (2) of the
Relationships Act 2008 so as to refer to caring partners.
These definitions apply in Part 3.2 of the Act, which deals with
relationship agreements. A caring partner of a person means a
person with whom the person is, or has been, in a registered
caring relationship, or with whom the person is contemplating
entering into a registered caring relationship.
Clause 16 inserts a new section 35A into the Relationships Act 2008 to set
out what is meant by a relationship agreement in Part 3.2 of the
Act.
A relationship agreement between domestic partners is an
agreement that deals primarily with financial and property
matters made before, on or after the commencement of the Bill.
The agreement can be made in contemplation of entering into a
domestic relationship, at any time during the domestic
relationship, in contemplation of the relationship ending or after
it has ended.
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A relationship agreement between caring partners is an
agreement that deals primarily with financial and property
matters made on or after the commencement of the Bill.
The agreement can be made in contemplation of entering into a
registered caring relationship, at any time during the registered
caring relationship, in contemplation of the registered caring
relationship ending or after it has ended.
Clause 17 amends section 37(1) of the Relationships Act 2008 by replacing
the reference to "partners" with "parties". Section 37(1) provides
that a court may vary or set aside a relationship agreement
where the circumstances of the parties to the agreement have
changed and it would be unfair to enforce the agreement.
This amendment reflects the terminology of new section 35A(1).
Clause 18 amends section 38 of the Relationships Act 2008 to include
caring partners (as defined in section 35(1)). The amended
section sets out what the effect will be on certain provisions of a
relationship agreement if one or both of the caring partners dies.
Clause 19 amends the definitions in section 39(1) of the Relationships Act
2008 so as to refer to caring partners. A caring partner of a
person is defined to mean a person with whom the person is or
has been in a registered caring relationship. This definition
applies in Part 3.3 of the Act, which deals with court orders for
the adjustment of interests in property and for maintenance.
Clause 20 amends section 40(1) of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section empowers a court, in property proceedings between
caring partners, to declare existing title or rights the partners
have in the property and to make orders giving effect to the
declaration.
Clause 21 amends section 41(1) of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section provides that a caring partner can apply to a court for
either an order for the adjustment of property interests or for
maintenance, or both.
Clause 22 amends section 42 of the Relationships Act 2008 to clarify that
the section applies to domestic relationships that have not been
registered under the Act. The section sets out residential and
other prerequisites that apply to unregistered domestic partners
for the making of an order for the adjustment of property interests
or for maintenance.
The section is not relevant to caring partners whose relationship
must be or must have been registered.
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Clause 23 amends section 43 of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section provides that if caring partners have ended their
registered caring relationship, an application for an order for
property adjustment or maintenance must be made within 2 years
of the relationship ending. However, a court may grant leave to
apply for an order outside this 2-year period if greater hardship
would be caused to the partner applying for the order if that leave
were not granted compared with the hardship to the other partner
caused by granting leave.
Clause 24 amends section 44(a) of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section provides that a court must, as far as practicable, make
orders that will end the financial relationships between the caring
partners and avoid further proceedings between them.
Clause 25 amends section 45 of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The clause inserts a
new subsection (1A) that empowers a court to make an order for
the adjustment of property interests on application by a caring
partner under section 41 of the Act. The order must be one that
seems just and equitable having regard to a number of specified
factors, including--
· the financial and non-financial contributions by each
caring partner to acquiring, conserving or improving
any property;
· the financial and non-financial contributions to the
financial resources of one or both of the caring partners;
· the contributions made to the welfare of the other caring
partner;
· the nature and duration of the registered caring
relationship.
Clause 26 amends section 46 of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section allows a court to adjourn an application for an order for
the adjustment of property interests where there is a likelihood of
a significant change in the financial circumstances of either of the
caring partners.
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Clause 27 amends section 48 of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section allows a court to defer the operation of an order for the
adjustment of property interests if satisfied that one of the caring
partners is likely to become entitled to property that could form
part of a property order.
Clause 28 amends section 51 of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section empowers a court to make an order for maintenance in
favour of a caring partner unable to support him or herself
because his or her earning capacity has been adversely affected
by the registered caring relationship, or any other reason arising
from the relationship. The matters to be considered by the court
are listed. They include the financial resources of each caring
partner, their financial needs and obligations and the extent to
which the registered caring relationship has affected the earning
capacity of the caring partner whose maintenance is under
consideration. An application for maintenance abates if either
caring partner dies before it is determined.
Clause 29 amends section 52 of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section allows a court to make an interim order for maintenance
where the caring partner applying for the order is in immediate
financial need.
Clause 30 substitutes section 53 of the Relationships Act 2008 with a new
section that includes caring partners (as defined in section 39(1)).
The substituted section prevents a person who has married,
entered a new domestic relationship or registered a new caring
relationship from making an application for maintenance in
relation to an earlier domestic relationship or registered caring
relationship that has ended.
Clause 31 amends section 54 of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section provides that an order for maintenance automatically
ceases to have effect when either caring partner dies or the caring
partner receiving the maintenance marries or registers a new
registrable domestic relationship or registrable caring
relationship.
8
Clause 32 amends section 56 of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section allows a court to review an order for periodic
maintenance where the circumstances of either caring partner
have changed or there have been changes in the cost of living that
would justify doing so. As a result, the court may discharge,
suspend or revive the order, or vary the terms of the order.
Clause 33 amends section 59 of the Relationships Act 2008 to include
caring partners (as defined in section 39(1)). The amended
section provides for the effect of relationship agreements
between caring partners on orders for the adjustment of property
interests or for maintenance. So long as certain requirements
have been met, a court is not to make an order that is inconsistent
with the arrangements made in the relationship agreement.
The requirements are that an agreement must be in writing,
signed by the caring partner against whom it is to be enforced,
and that each caring partner took independent legal advice as to
its effect before entering the agreement.
Where a court is satisfied that there is a relationship agreement
between the caring partners but that it does not meet the
necessary requirements, the court may still have regard to the
agreement when making an order.
Even where the requirements are met, the court is not bound to
give effect to the terms of an agreement where the caring partners
have explicitly or impliedly revoked it, the agreement has
otherwise ceased to have effect or the court varies or sets aside
the agreement under section 37 of the Act. Section 37 provides
that a court may vary or set aside a relationship agreement where
circumstances have changed and it would be unfair to enforce the
agreement. A court can also vary or set aside an agreement if it
has been made as a result of fraud or duress or for any other
reason that would allow a contract to be varied or set aside.
Clause 34 amends section 71(1)(a)(i) of the Relationships Act 2008 to
allow the Governor in Council to make regulations for or with
respect to prescribing fees for making an application to register
a registrable domestic relationship or a registrable caring
relationship.
Clause 35 inserts a new section 74A in the Relationships Act 2008 to
provide for a further transitional provision as a result of the
change to the definition of registered relationship in clause 5 of
the Bill. Section 74A provides that those relationships registered
after the commencement of the Act on 1 December 2008, and
before the commencement of the Bill, are deemed to be
registered domestic relationships.
9
Clause 36 amends section 75(2) of the Relationships Act 2008 to provide
that the interim fee for making an application to register a
registrable domestic relationship or a registrable caring
relationship is $180. This fee is taken to be the prescribed fee
until regulations are made prescribing fees for the purposes of
the Act.
PART 3--GENERAL
Clause 37 provides that the Acts specified in Schedule 1 to the Bill are to be
consequentially amended as set out in that Schedule.
Clause 38 provides for the automatic repeal of this amending Bill on the
first anniversary of its commencement. The repeal of this Act
does not affect in any way the operation of the amendments made
by this Act (see section 15(1) of the Interpretation of
Legislation Act 1984).
SCHEDULE 1--CONSEQUENTIAL AMENDMENTS TO
OTHER ACTS
Schedule 1 sets out those Acts that will be amended pursuant to clause 37.
The majority of the Acts in Schedule 1 currently make provision for a
domestic partner and will make provision for partners in a registered
relationship on commencement of the Relationships Act 2008. However, it
is not intended that these Acts apply to registered caring relationships.
Schedule 1 therefore amends the Acts to clarify that a reference to a
registered relationship means only a registered domestic relationship.
In Acts that make provision for registered relationships but which are not
amended by the Bill, the definition of a domestic partner in those Acts will
include a person who is in a registered relationship, meaning a registered
domestic relationship or a registered caring relationship.
In addition, the following Acts are amended by Schedule 1 as set out below:
Item 2 Administration and Probate Act 1958
It is intended that the provisions of the Administration and
Probate Act 1958 that apply to domestic partners apply equally
to partners in registered caring relationships. The Act does not
make provision for unregistered caring relationships.
The Relationships Act 2008 inserted into section 3(1) of the
Administration and Probate Act 1958 a definition of a
registered domestic partner of a person who dies. Item 2 of
Schedule 1 to the Bill further amends section 3(1) of the Act to
insert a definition of a registered caring partner of a person who
dies. A registered caring partner of a person who dies means a
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person who, at the time of the person's death, was in a registered
caring relationship with the person.
The Relationships Act 2008 also amended section 51A to make
provision for a partner in a registered domestic relationship.
Section 51A provides for the distribution of an intestate's
residuary estate where the intestate leaves more than one partner.
Items 2.2 and 2.3 of Schedule 1 to the Bill further amend section
51A to apply its provisions to registered caring partners.
In particular, if an intestate leaves a spouse or registered partner
(either a registered domestic partner or a registered caring
partner) and an unregistered domestic partner, then the estate will
be divided between the one formalised relationship and the other
relationship in accordance with the table in section 51A.
It is noted that the Bill provides that a person cannot register a
registrable caring relationship if he or she is already married or in
a registered relationship. An intestate cannot therefore leave both
a spouse and a registered partner.
Item 3 Attorney-General and Solicitor-General Act 1972
The Constitution Amendment (Judicial Pensions) Act 2008
amended section 6(1) of the Attorney-General and Solicitor-
General Act 1972 to substitute references to "spouse" with
"partner". Section 6(1) provides that the partner of the Solicitor-
General is entitled to a pension in the same circumstances and at
the same rates and on the same terms and conditions as a partner
of a judge of the Supreme Court (other than the Chief Justice, the
President of the Court of Appeal or a Judge of Appeal) under
Part III of the Constitution Act 1975.
The intention of the amendment was to extend the application of
section 6 to de facto and same-sex partners. The term "partner"
is not, however, defined in the Attorney-General and Solicitor-
General Act 1972.
Item 3 of Schedule 1 to the Bill further amends section 6 of the
Attorney-General and Solicitor-General Act 1972 by inserting
definitions of partner, domestic partner and spouse.
These definitions are consistent with the definitions contained in
section 5A of the Constitution Act 1975 (as amended by the
Constitution Amendment (Judicial Pensions) Act 2008) and
have been inserted for the purposes of clarity only. The inclusion
of the definitions is not intended to change any entitlement of
spouses or domestic partners that existed before the definitions
were inserted.
11
Section 6(1) of the Attorney-General and Solicitor-General
Act 1972 has not been extended to apply to partners in registered
caring relationships. The definition of domestic partner inserted
by Item 3 therefore means a person who is in a registered
domestic relationship but does not mean a person who is in a
registered caring relationship.
Item 5 Congestion Levy Act 2005
Item 5 amends the definition of domestic partner in section 3(1)
of the Congestion Levy Act 2005 to also include a partner in a
domestic relationship registered under the Relationships Act
2008. Where a partner is not in a registered domestic
relationship, the current definition of domestic partner in the Act
will continue to apply and the circumstances to be taken into
account in determining whether persons are domestic partners of
each other are those set out in section 35(2) of the Relationships
Act 2008.
However, the provisions of the Congestion Levy Act 2005 that
apply to domestic partners have not been extended to partners in
registered caring relationships.
Item 17 Magistrates' Court Act 1989
The Constitution Amendment (Judicial Pensions) Act 2008
amended section 10A of the Magistrates' Court Act 1989 to
substitute references to "spouse" with "partner". Section 10A
provides that the partner of the Chief Magistrate is entitled to a
pension in the same circumstances and at the same rates and on
the same terms and conditions as a partner of a judge under the
County Court Act 1958.
The intention of the amendment was to extend the application
of section 10A to de facto and same-sex partners. The term
"partner" is not, however, defined in the Magistrates' Court
Act 1989.
Item 17 of Schedule 1 to the Bill further amends section 10A of
the Magistrates' Court Act 1989 by inserting definitions of
partner, domestic partner and spouse. These definitions are
consistent with the definitions contained in section 3AA of the
County Court Act 1958 (as amended by the Constitution
Amendment (Judicial Pensions) Act 2008) and have been
inserted for the purposes of clarity only. The inclusion of the
definitions is not intended to change any entitlement of spouses
or domestic partners that existed before the definitions were
inserted.
12
Section 10A of the Magistrates' Court Act 1989 has not been
extended to apply to partners in registered caring relationships.
The definition of domestic partner inserted by Item 17 therefore
means a person who is in a registered domestic relationship but
does not mean a person who is in a registered caring relationship.
Item 21 Public Prosecutions Act 1994
The Constitution Amendment (Judicial Pensions) Act 2008
amended sections 18 and 35 of the Public Prosecutions Act
1994 to substitute references to "spouse" with "partner".
Section 18 of the Public Prosecutions Act 1994 provides that
the partner of the Chief Crown Prosecutor is entitled to a pension
in the same circumstances and at the same rates and on the same
terms and conditions as a partner of a judge under the County
Court Act 1958. Section 35 of the Public Prosecutions Act
1994 provides that the partner of a Senior Crown Prosecutor is
entitled to a pension in the same circumstances and at the same
rates and on the same terms and conditions as a partner of a judge
under the County Court Act 1958.
The intention of the amendments was to extend the application of
these sections to de facto and same-sex partners. The term
"partner" is not, however, defined in the Public Prosecutions
Act 1994.
Item 21 of Schedule 1 to the Bill amends section 3 of the Public
Prosecutions Act 1994 by inserting definitions of partner,
domestic partner and spouse. These definitions are consistent
with the definitions contained in section 3AA of the County
Court Act 1958 (as amended by the Constitution Amendment
(Judicial Pensions) Act 2008) and have been inserted for the
purposes of clarity only. The inclusion of the definitions is not
intended to change any entitlement of spouses or domestic
partners that existed before the definitions were inserted.
Section 18 and section 35 of the Public Prosecutions Act 1994
have not been extended to apply to partners in registered caring
relationships. The definition of domestic partner inserted by
Item 21 therefore means a person who is in a registered domestic
relationship but does not mean a person who is in a registered
caring relationship.
Item 25 Supreme Court Act 1986
The Constitution Amendment (Judicial Pensions) Act 2008
amended sections 104A to 104J of the Supreme Court Act 1986
to substitute references to "spouse" with "partner".
These sections of the Supreme Court Act 1986 deal with the
pension entitlements of Masters of the Supreme Court and their
13
partners. The intention of the amendments was to extend the
application of these sections to de facto and same-sex partners.
The term "partner" is not, however, defined in the Supreme
Court Act 1986.
Item 25 of Schedule 1 to the Bill amends section 3 of the
Supreme Court Act 1986 by inserting definitions of partner,
domestic partner and spouse. These definitions are consistent
with the definitions contained in section 5A of the Constitution
Act 1975 (as amended by the Constitution Amendment
(Judicial Pensions) Act 2008) and have been inserted for the
purposes of clarity only. The inclusion of the definitions is not
intended to change any entitlement of spouses or domestic
partners that existed before the definitions were inserted.
The pension provisions of the Supreme Court Act 1986 have
not been extended to apply to partners in registered caring
relationships. The definition of domestic partner inserted by
Item 25 therefore means a person who is in a registered domestic
relationship but does not mean a person who is in a registered
caring relationship.
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