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The importance of the marriage analogy in interpreting the new de-facto couple provisions under Pt VIIIAB of the FLA

Catovic, Lillian (2013) The importance of the marriage analogy in interpreting the new de-facto couple provisions under Pt VIIIAB of the FLA. Honours thesis, Murdoch University.

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There is a general social recognition that it would be equitable and appropriate to protect the interests of defacto1 couples just as we protect the interests of couples who are legally married. The introduction of uniform legislation governing the property and maintenance rights under Pt VIIIAB of the Family Law Act 1975 (Cth) (FLA) saw defacto couples achieve equality with married couples in terms of remedies. The road to such recognition was a long and difficult one, but, case law emerged that seem to bring us back to the beginning by making superficial distinctions between the marriage and de facto relationships. Some judicial views have impacted on the creation rules specific to defactos by trying to assign new content to the nature of this relationship. This has created a sense of confusion and divergence in judicial views as to whether or not analogy to marriage is appropriate when determining the existence and breakdown of a defacto relationship under Pt VIIIAB of the FLA, and whether there is any benefit gained by relying on decisions that have interpreted the meaning of a ‘defacto relationship’ under other state defacto legislation. An analysis of the current case law dealing with the issues of establishing the existence and breakdown of defacto relationships and the particular issue of suspensions and reconciliations during a defacto relationship, shows that without drawing analogy to marriage many practical problems with interpretation are created that can cause serious injustices to defacto couples. The paper argues that the most sensible approach, that would give effect to the desired equality in terms of remedies to defactos, would be to adopt an approach which consistently aligns defacto relationships with marriage by drawing on established law and reasoning and thereby creating more certainty. This paper concludes that, if a defacto relationship is not analogous to marriage then s 4AA offers no real content or essential meaning to describe a defacto relationship, and that this is of significant concern because no alternative definition of a defacto relationship has been articulated by the courts.

Item Type: Thesis (Honours)
Murdoch Affiliation(s): School of Law
Notes: Note to the author: If you would like to make your thesis openly available on Murdoch University Library's Research Repository, please contact: Thank you.
Supervisor(s): Young, Lisa and Goodie, Jo
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