© 1995 by Oxford University Press
research-article |
FINANCIAL RIGHTS IN RELATIONSHIPS OUTSIDE MARRIAGE: A DECADE OF REFORMS IN AUSTRALIA
*Professor of Law, University of BristolWills Memorial Building, Queens Road, Bristol BS8 1RJ, England
The past decade in Australia has witnessed substantial reforms to property and maintenance rights in relationships outside marriage. The changing pattern of those reforms highlights the complexities of the policy issues involved. Reform must address issues of diversity in contemporary society, of individual autonomy versus legal paternalism, of the definition and substance of equality, and of the role of legal regulation of family relationships. An analysis based on contextual functionalism and on the remedial role of the law governing asset distribution on the breakdown of a relationship supports the creation of a legislative scheme where the parties' rights do not depend on the formal status of the relationship. The Australian experience reveals the inability of even reformed equitable doctrines to deliver justice in this field; statute is the best way forward. The changing pattern of legislative reforms over four jurisdictions in Australia reveals differences of approach both to the definition of relationships which are afforded legal protection and to the principles governing asset distribution. Any move towards an increasingly wide definition of relationship which is gender-neutral has been accompanied by a trend towards the assimilation of the substance of financial rights between the married and the unmarried. Three of the statutory schemes in Australia give consideration to party autonomy in permitting contracting-out, but subject to safeguards designed to prevent exploitation. The merits and defects of the various Australian approaches provide valuable lessons for law reformers elsewhere, including those in England where the issue is currently under consideration by the Law Commission.