"Marriage is being imposed on everyone whether they like it or not," says Patrick Parkinson, professor of law at the University of Sydney. "It will come as a shock to some people."
PEOPLE thinking of moving in with a partner have been warned to read the fine print on a bill before Parliament that will treat de facto relationships in exactly the same way as marriage.
Some experts believe young - and not-so-young - lovers need to know their lives could be financially entwined forever once they have lived together for two years and then separate.
The changes to federal family law would create a national scheme for property settlements to cover all separating couples, including same-sex couples, and hand jurisdiction to the Family Court.
At present, de facto couples have their disputes over children settled in the Family Court, whereas disputes over property are settled in the District Court under laws that are far from uniform. Many family lawyers believe the bill will correct serious inequities in property settlements, such as for disadvantaged women in long-term de facto relationships and their children.
But others say it goes further than the present NSW law, which many people wrongly believe already affords married couples and de factos equal treatment. The federal law will create the potential for continuing financial obligations that some de facto couples may not want, they say.
"Marriage is being imposed on everyone whether they like it or not," says Patrick Parkinson, professor of law at the University of Sydney. "It will come as a shock to some people."
Tomorrow, Professor Parkinson will be among experts at a Sydney hearing of the Senate legal and constitutional affairs committee, which is considering the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill. It will change the way property can be divided when de facto couples separate by enabling a court to consider the "future needs" of the partners, as happens with married couples.
At present, in making property settlements, the District Court only takes into account the contributions both parties have made during their relationship towards acquiring their assets, including as home-maker and parent.
Under the reforms, the court would heed matters such as one partner's higher earning capacity, each partner's age and health, and one party's role as primary carer of school-aged children. Treating married and de facto couples differently has led to serious inequities, says Chris Dimock, of Dimocks Family Lawyers.
"Take the case of a woman in her 50s who has not worked for 20 years and has raised the children," he said. "She is deserted by her de facto husband who earns half a million dollars a year. Currently the court looks only at her contribution during the past 20 years rather than her future financial needs in the division of property. That is not the case with a married woman."
But Professor Parkinson believes the "future needs" provision may have an unexpected and harmful effect on some de facto couples, especially young people without children.
A young woman who has received a big inheritance, or who is paid more than her partner, will find on separation that he could obtain more of the property. And in some circumstances she may have to pay maintenance under the reforms to support her former partner if he is unable to work.
As well, couples who entered a de facto relationship intending to keep their assets separate will be treated like married people under the changes. The court will be able to combine their assets and divide them according to "contributions" and "future needs".
The bill will also enable superannuation assets to be split, an option now open only to married people.
Denise Tremont, 54, and Keith Crews, 58, of Baulkham Hills, have kept their assets separate since moving in together 13 years ago. Each has two adult children from previous marriages, and several properties between them. They want the children to inherit their respective parents' assets.
"I came into the relationship with a certain amount, and I don't want to make money out of it," Ms Tremont said. "As long as I am secure and my children are OK, I don't feel it's right to make demands of him."
Mr Crews said they had no intentions of splitting but he was surprised that a court might be able to pool their assets.
Mr Dimock said the Family Court was better equipped than district courts to deal with the financial and emotional complexities of relationship breakdown, and to take into account matters such as the length of a relationship. The big concern was that Family Court registries would be over-burdened.
Related:
De facto laws won't suit Gen Y: expertA prominent legal academic is warning proposed changes to laws governing de facto relationships could limit freedom for young couples.
Professor Patrick Parkinson says many people, especially young couples, might not agree to the division of future superannuation and maintenance.
"Many people don't want that, particularly young people, particularly Generation Y," he said.
"They are trying relationships out, they're seeing if it'll work ... they don't want the life-long commitment of a marriage when they simply move in," he said.
