By Roz Curnow, Nolch and Associates
Further to the article in the November/ December 2008 (The Legal Executive) Journal, please note the Relationships Amendment (Caring Relationships) Bill 2008 which will amend the Relationships Act 2008 (the ‘principal Act’), the latest default implementation date being 1 December 2009 if not proclaimed earlier. Readers should of course maintain a watching brief, as further amendments may be made.
This article focuses on the ‘caring relationship’ aspects of the bill.
The explanatory memorandum to the Bill states, in part, that the purpose of the amending Bill is to amend the Relationships Act in order to “… allow for the registration of caring relationships on the relationships register and for the recognition, where appropriate, of registered caring relationships … 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 …” The bill itself states that its purpose is “… to provide for the registration of caring relationships in Victoria … the adjustment of property interests between caring partners who are in, or have been in, a registered caring relationship (see clause 19 which amends the definitions in Part 3.3 Property and maintenance of the principal Act)… the rights to maintenance of caring partners who are in, or have been in, a registered caring relationship… ”
The bill also makes consequential amendments to various acts in order to specify which acts, whilst they apply to partners in domestic relationships, do not apply to partners in caring relationships.
Some definitions should be particularly noted – the bill amends section 5 of the principal Act to insert the definition of a ‘registrable caring relationship’ which means “a relationship (other than a registered relationship) between two adult persons who are not a couple or married to each other and who may or may not otherwise be related … where one or each of the persons … provides personal or financial commitment and support of a domestic nature for the material benefit of the other, whether or not they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person for fee or reward or on behalf of another person or an organisation …”, and to insert the definition of ‘legal practitioner’s certificate’ – being a certificate given per s 7(ba)(and see also s 59).
Persons in a registrable caring relationship can apply for registration of the relationship. They must live in Victoria and cannot be married or in a relationship already registered in Victoria, or in another relationship which could be registered in Victoria. The existing registration requirements in section 7 of the principal Act will be amended by clause 10 of the bill (inserting sub-section 7(ba)) embedding a pre-registration requirement in relation to a registrable caring relationship that each party must first obtain independent legal advice in respect to the consequences of registration (i.e. which will of necessity be extensive). The Explanatory Memorandum notes that the remaining registration application requirements in section 7 apply to applicants “in registrable domestic relationships and registrable caring relationships in the same way”. It appears therefore that independent legal advice needs to be provided for registration of a caring relationship, but not for registration of a domestic relationship; however, in respect to registration of agreements, both types need independent legal advice (see proposed amendments to section 59 regarding the court’s powers, including where registration requirements have not been met).
Clause 16 inserts a new s 35A into the principal Act, defining relationship agreements. It separately defines an agreement made between domestic partners, and an agreement made between caring partners on or after the commencement of the amending act. The caring relationship agreement, providing for financial matters, whether or not it provides for other matters, can be made in contemplation of entering into a registered caring relationship, during it, in contemplation of it ending, or after it has ended.
The bill also amends s 42 of the principal Act “to clarify that the section applies to domestic relationships that have not been registered…” That section details residential and other prerequisites which apply to unregistered domestic partners vis-à-vis making an order for the adjustment of property interests or maintenance. “The section is not relevant to caring partners whose relationship must be or must have been registered.”
The bill amends s 41(1) of the principal Act to include caring partners, as defined in s 39(1), so that a caring partner can apply to a court for an order for either or both of an adjustment of property interests or maintenance; s 43 regarding applications by registered caring partners within two years of the ending of the relationship (or as extended by the court); s 51, empowering a court to make a maintenance order in favour of a caring partner unable to support him/herself because his/her earning capacity has been adversely affected by the registered caring relationship or other reason arising from the relationship, listing the matters to be considered (with the application for maintenance abating if either caring partner dies before determination); s 53, preventing an application for maintenance in respect to an earlier domestic relationship or registered caring relationship where the person has married or entered a new domestic relationship or registered a new caring relationship; s 54 regarding the circumstances in which a maintenance order ceases to have effect (including in relation to the death of a party); s 74A regarding transitional arrangements for relationships registered after 1 December 2008 but before commencement of the amending Act; and numerous other sections to include caring partners and make other amendments to the principal Act.
Also of particular note is the section in the explanatory memorandum (and see clause 37 and schedule 1 in the bill) which refers to “schedule 1 – consequential amendments to other Acts”, which requires very careful scrutiny regarding reference to the definition in the listed Acts of a ‘registered relationship’; and the definition of ‘domestic partner’ in the Acts not amended by the bill.
Readers must check the specific wording of the amendments to the thirty acts which will be amended by the Schedule to the bill, assuming further acts are not added.
Of immediate concern to many readers will be:
Administration and Probate Act 1958
The explanatory memorandum states that “It is intended that the provisions (of the Administration and Probate Act) 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 s 3(1) (of the Administration and Probate Act) a definition of a registered domestic partner of a person who dies. … the bill further amends s 3(1) … to insert a definition of a registered caring partner of a person who dies … (which) means a 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 s 51A to make provision for a partner in a registered domestic relationship. … the bill further amend(s) s 51A to apply its provisions to registered caring partners…”
The explanatory memorandum continues “…if an intestate leaves a spouse or registered partner (either domestic or caring) and an unregistered domestic partner, then the estate will be divided between the one formalised relationship and the other relationship … a person cannot register a registrable caring relationship if he/she is already married or in a registered relationship”, i.e. an intestate cannot leave both a spouse and registered partner.
Wrongs Act 1958
In sub-ss 19(3)(a) and 19(4)(a) and (b) after the word ‘registered’ insert “domestic”.
Additionally, the Fair Trading and Other Acts Amendment Bill 2008 will repeal Item 69 in schedule 1 of the principal Act.
Insofar as property and maintenance matters are concerned, we noted in our previous Relationships Act article that the operation of that act could be affected by an act resulting from the Federal Family Law Amendment (De Facto Financial Matters and other Amendments) Bill 2008. This is now the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008; and in their article Two by Two: Victoria’s Relationships Register (Law Institute Journal Jan/Feb 2009 commencing at page 50), which includes commentary on the interrelationship between the Victorian and Commonwealth Acts, authors Adiva Sifris and Ronli Sifris comment “It is envisaged that, as Parliament has passed the Federal Act, the provisions in the Victorian legislation relating to property and spousal maintenance will become largely redundant.”
We will watch with interest the development of this area of law, and where enforcement action might ultimately be effected – noting County Court of Victoria Interim Practice Note PNCI 8-2008 re Relationships Act 2008 and Relationships Amendment (Caring Relationships) Bill 2008 – www.countycourt.vic.gov.au; and Family Court Rules 2009 – https://www.fcfcoa.gov.au/.
Further reading: Impact on Wills and TFM claims of the Relationships Act 2008 by Kathy Wilson, Aitken Walker & Strachan, presented at the LIV Legal Support Staff Conference 2009; and subsequent papers.
Roz Curnow
Nolch & Associates
Note: This article was first published in The Legal Executive March-April Volume 2009 Issue No. 2 (save for minor corrections), and is reproduced with the permission of the author and The Institute of Legal Executives (Victoria). Readers should note affecting Federal legislation. This is a brief, and non-exhaustive, overview contributed by Nolch & Associates Solicitors for educational purposes only, with thanks to those who provided input on the numerous initial drafts. This article does not constitute legal advice. Readers must of course read the full Principal Act, and maintain a watching brief on the amending Bill, for themselves. Sources: www.justice.vic.gov.au and www.austlii.edu.au. Emphasis has been added in some sections.
Tip Box
Whilst written for Victoria practitioners this article has interest and relevance for practitioners in all states.