Questions of Maintenance and Property Distribution

280. Maintenance and Property Rights during the Relationship. If traditional marriage is to be recognised for various purposes the question arises whether there should be legal obligations of maintenance. whether between the spouses or between the spouses and their children. A related matter is the problem of determining the property rights of the parties. Persons who marry under the Marriage Act 1961 (Cth) incur a duty, within certain limits, to maintain each other a duty which does not normally apply, for example, to persons living in a de facto relationship. In both situations, there is an obligation to maintain any children of the relationship. The principles for determining the property rights of parties during a relationship also vary depending on whether there is a marriage or a de facto relationship.[32]

281. Maintenance Obligations of Marriage. The rights and obligations regarding maintenance between parties to a marriage are imposed by s 72 of the Family Law Act 1975 (Cth).

A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately. whether-

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment: or

(c) for any other adequate reason.

having regard to any relevant matter referred to in sub-section 75(2).

A further obligation with respect to any children of the marriage is imposed by s 73.

The parties to a marriage are liable. according to their respective financial resources. to maintain the children of the marriage who have not attained the age of 18 years.

Proceedings with respect to maintenance may be brought at any time under the Family Law Act. whether during the course of a marriage or in situations of marriage breakdown or divorce. The Court may make such order for maintenance as it thinks fit (s74) but in making such an order it must take into account various matters specified in s 75(2) (in respect of spouses) and s 76 (in respect of children).[33]

282. Maintenance Obligations of De Facto Relationships. New South Wales and Tasmania are the only jurisdictions which impose obligations of maintenance in de facto relationships, and then only in limited circumstances. The Maintenance Act 1967 (Tas) s 16, enables a woman who has cohabited with a man for at least 12 months to obtain a maintenance order if the man, without just cause or excuse, leaves her or any child of theirs without adequate means of support, deserts her, or is guilty of such cruelty or misconduct as to render it unreasonable to expect her to continue to live with him.[34] The De Facto Relationships Act 1984 (NSW) s 27 gives a court the power to order maintenance for a de facto partner who is unable to support himself or herself adequately by reason of having the care and control of a child of the de facto partners or a child of the respondent, provided the child is under 12 years (or if physically or mentally handicapped, under 16 years). A maintenance order may also be made where a de facto partner is unable to support himself or herself adequately because the applicant’s earning power has been adversely affected by the circumstances of the relationship, and the order would enable a course or programme of training or education to be undertaken. In no other State is there a legal obligation on one de facto spouse to support or maintain the other. This is so regardless of the financial position of the parties or the duration of the relationship.[35] However, maintenance obligations do arise with respect to the children of a de facto relationship. Each State has legislation which imposes obligations with respect to maintenance[36] and child welfare.[37] Child welfare legislation throughout Australia declares a child to be neglected or in need of care and protection if it is not adequately supported by its parents. These Acts are primarily concerned with ensuring a minimum standard of maintenance for a child. In addition to child welfare legislation there is maintenance legislation in each State which provides a right of action for maintenance in limited circumstances. In some States there is legislation which allows a maintenance order to be made ancillary to another application.[38]

283. Property Rights During a Relationship. There is legislation in each State, based on the Married Womens’ Property Act 1882 (UK), which may be the basis for an action to determine property disputes between married couples.[39] The Family Court also has power to deal with certain property disputes between married persons.[40] State courts are reluctant to exercise their own jurisdiction if there is a likelihood of an order for property distribution being sought under the Family Law Act 1975 (Cth). This is principally because of the widely differing powers to alter property rights in the different jurisdictions. The powers of the Family Court pursuant to the Family Law Act 1975 (Cth) allow property rights to be altered, whereas State courts’ powers, except in Victoria and New South Wales, are restricted to declaring existing rights. The basic principles to be applied by State courts when considering a property dispute of this kind between a husband and wife were laid down by the High Court in Wirth v Wirth.[41] There are in such cases no special principles to determine property rights based on the marriage relationship; the ordinary principles of law and equity apply. Thus the respective rights of the parties are determined by rules of law and not judicial discretion. The fact that the parties are married is, as such, irrelevant.[42] Except in Victoria[43] and New South Wales,[44] the only way in which a spouse can obtain a proprietary interest to which he or she is not entitled under the general law is under the Family Law Act 1975 (Cth).

284. Maintenance and Property Rights and Aboriginal Traditional Marriage. Since Aboriginal traditional marriages are not recognised as marriages for any of these purposes, such unions are treated as de facto relationships for the purposes of Australian property and maintenance law. The question is whether this is appropriate. Should an Aboriginal traditional marriage be equated with a Marriage Act marriage for the purposes of maintenance between the spouses? Should a traditional marriage be regarded as a marriage for the purposes of the maintenance provisions of the Married Women’s Property Acts? Are the children of traditional marriages adequately protected under the present law? Will Aborigines be disadvantaged if for the purposes of maintenance and property rights their traditional unions are treated as de facto relationships rather than marriage? Or is it preferable to special rules to be developed in this area?

285. Maintenance. Under the existing law (except in New South Wales and Tasmania), only parties to a Marriage Act marriage incur maintenance obligations to each other. Thus the parties to a traditional marriage have no legally enforceable duty to maintain each other. On the other hand, the children of a traditional marriage are entitled to maintenance in each State and Territory. Under existing State legislation a maintenance order could be made against an Aborigine who is a party to a traditional marriage with respect to children of the marriage. The question is whether the law should be changed to impose on Aboriginal spouses obligations of mutual maintenance, and additional obligations to maintain their children, during their relationship. There are several reasons why no such changes to the law should be made.

  • No apparent need for change. First, most disputes in relation to maintenance arise following the breakdown of the marriage or de facto relationship. An order for maintenance while a relationship is still subsisting is less common: this does not seem a major area of difficulty. Children of traditional marriages may be the subject of maintenance orders under existing State legislation. It does not appear that traditional spouses are being disadvantaged because of the non-existence of a legal duty to maintain each other. The Commission has had no submissions suggesting problems in this area, nor is any other evidence available to support such a change.

  • Change would not be effective. It is very doubtful whether new maintenance legislation for traditional marriage would significantly increase the economic security of Aboriginal spouses, or the stability of such marriages. Maintenance obligations under the present law are notoriously difficult to enforce;[45] this would probably be at least equally the case with an extended maintenance obligation for traditional marriage. Indeed, the effect might be negative, in that social security benefits may be less accessible through the existence of an (in practice unenforceable) claim to maintenance.[46]

  • No correspondence with Aboriginal traditions or perceptions. Thirdly, the extension of maintenance obligations to traditional spouses would not reflect Aboriginal perceptions of the role of husbands and wives in maintaining the domestic economy. Traditionally each party to a marriage has been regarded as an independent contributor of food and services to the family (although the kinds of food and services varied between husbands and wives).[47]

For these reasons, there is on balance no sufficient justification for imposing a new maintenance regime on the parties to traditional marriages. Whatever the social and economic needs of the parties, they are unlikely to be improved by imposing a new legal obligation to pay maintenance.

286. Property. As with the laws relating to maintenance, and for the same reasons, there is no demonstrated problem requiring a special right of action to enable parties to traditional marriages to have their property rights determined. It is not appropriate to make special provision for an action with respect to property rights as between traditional spouses, under the Married Women’s Property Acts or otherwise.

287. Maintenance and Property Distribution on Divorce. As with maintenance and property rights during a relationship, the law with respect to maintenance and property distribution where a relationship breaks up or is dissolved varies depending on whether there is a de facto relationship or a Marriage Act marriage. Briefly, the position with respect to marriage is as follows:

  • Maintenance. The provisions in the Family Law Act 1975 (Cth) with respect to maintenance orders apply equally to maintenance orders sought during the relationship and on its termination, though the latter is the more usual. Application for a maintenance order must be made within 12 months of a decree being granted unless the Court grants special leave.[48]

  • Property. The Family Law Act 1975 (Cth) s 79 confers extensive powers with respect to the property rights of parties to a marriage. As well as declaring existing rights the Court has broad discretionary powers to alter the rights of the parties in property owned by them. In making an order the Court is required to take into account a number of factors (set out in s 79(4)). These include the financial contributions of the parties to the acquisition, conservation or improvement of the property: contributions in the capacity of homemaker or parent: and the effect of the order on the earning capacity of either party.

288. Maintenance and Property Distribution on the Termination of De Facto Relationships. As noted already, a maintenance claim by a party to a de facto relationship can be made only in Tasmania and New South Wales. However, all States and the Territories have provision for maintenance claims with respect to a child of a de facto relationship.[49] There is, equally, little legislation on the property rights of former parties to de facto relationships. Property disputes in such cases are determined under the general law of property. The basic principle applied by the court is that beneficial interests in disputed property are allocated according to the formal title to the property. If the two parties make financial contributions towards the purchase of property the beneficial interest may be held to be in proportion to the contributions, even if title is in the name of one person.[50] However, if for example, a woman’s contribution has been made through maintaining the family home and caring for children she may well have no claim.[51] Except in New South Wales,[52] the future needs of a person are of no relevance.

289. Maintenance and Property Distribution on the Termination of Aboriginal Traditional Marriage. In Aboriginal societies it was usual for a person to be married a number of times over a lifetime, and it was uncommon to find unmarried widows, widowers or ‘divorcees’.[53] Under the kinship system there was always a second or third alternative partner available. In addition, the extended family system provided a strong network of support so that if, for example, a woman with a number of children was unable to support herself and family, assistance was readily available. This feature of Aboriginal society remains strong today. The introduction of the cash economy and increasing contact with the wider Australian society have of course had significant effects on Aboriginal society.[54] Relatively few traditionally oriented Aborigines own substantial amounts of tangible property as individuals, or earn sufficient income to justify a maintenance order being sought or made against them. Issues of property distribution and maintenance on the breakdown of a traditional marriage rarely arise. Any problems that do occur seem to be resolved informally without the need for external legal intervention. For these reasons, as well as for those given already with respect to maintenance and property rights during traditional marriage, it is doubtful whether there are, even in embryonic or developing form, Aboriginal customs or traditions which can usefully be built on or developed for the present purpose. Certainly there is nothing which can be simply ‘recognised’ as solving the problems of the economic security of former traditional spouses. The reality is that economic security (to the extent that it exists) has to be re-established in each case by remarriage. sharing within the extended family, employment (where available) or reliance on the social security system, or some combination of these. Imposing an obligation on former traditional spouses with respect to property and maintenance would involve at least a partial shifting of responsibility from these forms of support to former Aboriginal spouses. Not only is it very doubtful whether this could be made to work, but it seems the wrong direction for the law, concerned as it is with providing effective economic security for persons in need, to be moving. This is particularly so given that there is no indication that such a change would be an expression, or development, of existing Aboriginal norms, traditions or demands.

290. The Commission’s View. The Commission concludes that it is not desirable to equate traditional marriages with Marriage Act marriage for the purpose of maintenance and property distribution after the termination of the relationship.[55] The matter should be left to the general la w, including the law on de facto relationships where this applies. No change to existing laws is recommended. However the matter may need to be reviewed in due course,[56] especially so far as property distribution is concerned. If, through royalties in respect of mining on Aboriginal land or in other ways, substantial amounts of property come to be held by particular persons, questions of distribution on dissolution of traditional marriages may arise with greater frequency. Aboriginal views about what constitutes a fair distribution of assets, having regard to traditional responsibilities to kin and family, may change, and a clearer demand for some legal recognition of these responsibilities in such cases may emerge. But no specific recommendation is warranted at this time.

291. Property Distribution on Death. Each State and Territory has legislation dealing with distribution of a person’s property after death. This legislation falls into three categories: (1) the law relating to wills, (2) intestacy, and (3) family provision (or testator’s family maintenance). It is primarily the latter two which are of concern in considering the recognition of Aboriginal traditional marriages. In the (so far, relatively rare) case where an Aboriginal spouse makes a will no problem of recognition of the marriage is likely to arise.[57] However, if the will makes no provision for a traditional spouse the question may arise whether a traditional spouse should be eligible to apply for family provision. The matter is further complicated because under customary law a traditional spouse may not be entitled to a share of the estate: instead, her family would be expected to provide for her. If there is no will and the rules of intestacy are applied, should an Aboriginal traditional marriage be taken into account, and if so, in what ways? To some extent these questions go beyond the recognition of traditional marriages, and in this respect they will be dealt with in Chapter 15. Only the narrower issue, of recognition of traditional marriage, is dealt with here.

292. Distribution on Intestacy: The Present Law. The general principle in the legislation of each State and Territory is that if a spouse dies without leaving a will, the surviving spouse becomes entitled to a substantial share, and in some circumstances all, of the deceased’s estate. In South Australia there is specific provision for a de facto spouse to participate in a distribution on intestacy.[58] If there is a de facto spouse and no married spouse, the putative spouse may take all of the spouse’s share. If there is both a de facto spouse and a married spouse they share the entitlements equally. In no other Australian jurisdiction is there specific provision for a surviving de facto spouse to participate in the distribution of the deceased’s estate[59] although in New South Wales the De Facto Relationships Act 1984 enables an order adjusting properly interests to be made after the death of a de facto partner and to be enforced against the deceased estate (s 24, 25).[60] There is now provision in a number of jurisdictions for a surviving de facto partner to apply for family provision. The Northern Territory alone recognises traditionally married persons as married for the purposes of intestate distribution. The Administration and Probate Act (NT) provides that:

an Aboriginal who has entered into a relationship with another Aboriginal that is recognised as a traditional marriage by the community or group to which either Aboriginal belongs is married to the other Aboriginal and, all relationships shall be determined accordingly.[61]

As a consequence of allowing a traditional spouse to claim on a deceased estate, s 67A of the Act provides for cases of polygyny:

Where an intestate Aboriginal is survived by more than one spouse, the whole or that part of the intestate estate, as the case may be, passing to the spouse of the intestate by force of s 66(1) and the value of the personal chattels of the intestate passing to the spouse by force of s 67 shall be divided into a number of parts equal to the number of spouses of that intestate and each spouse of the intestate is entitled to one of those parts of the estate and chattels.

The Northern Territory legislation is a useful model. It recognises Aboriginal traditional marriages, and also makes provision for traditional distribution of property on the death of an intestate Aborigine.[62]

293. Family Provision (Testator’s Family Maintenance). In all States and Territories there is legislation enabling a claim to be made for further provision out of the deceased’s estate, if the will makes inadequate provision for the proper maintenance and support of dependants. Application may also be made if the rules of intestacy fail to make adequate provision.[63] The legislation in each jurisdiction specifies the persons who are eligible to apply: these include a surviving spouse and (with some exceptions) a surviving former spouse.[64] Application may also be made by children (including ex-nuptial children) of the deceased regardless of age. Surviving de facto partners are eligible to apply in New South Wales, Queensland, South Australia and the Northern Territory.[65] In Western Australia eligibility is limited to a de facto widow.[66]

294. Recognition of Traditional Marriage for this Purpose. As with its intestacy legislation, the Northern Territory specifically recognises traditional marriage for the purposes of family provision. Section 7(1A) of the Family Provision Act (NT) extends entitlement to apply for family provision to traditional spouses in the same way as persons married under the Marriage Act 1961 (Cth):

For the purpose of determining whether a person is entitled to make an application under subsection (i), an Aboriginal who has entered into a relationship with another Aboriginal that is recognised as a traditional marriage by the community or group to which either Aboriginal belongs is married to the other Aboriginal, and all relationships shall be determined accordingly.

There does not appear to be any good reason for excluding a surviving traditional spouse from making a claim for family provision. Admittedly there seems to have been no traditional analogue of family provision on the death of a spouse; property tended to be destroyed or distributed to members of the family of the deceased, excluding the surviving spouse, and (as with ‘divorce’) security for the surviving spouse was achieved in other ways.[67] But (unlike the situation after the end of a traditional marriage by ‘divorce’) recognising traditional marriage for this purpose may enhance the security of a surviving spouse, at least in some cases. Similar considerations apply to property distribution on intestacy: traditional marriages should be recognised as ‘marriage’ for both purposes.[68] On this basis it might also be argued that the law relating to family provision should be extended to include other members of Aboriginal extended families. On the other hand, there is the prospect of conflicts between a testator’s freedom to dispose of his property and the traditions and norms of the group or community to which he belonged. These issues will be discussed in the next Chapter.

[32]See generally NSWLRC 36, ch 7 & 8.

[33]See HA Finlay, Family Law in Australia, 3rd edn, Butterworths, Sydney, 1983, ch 7.

[34]On this exceptional provision (which dates from 1837) see WM Craig & MFC Scott, ‘The Maintenance of Concubines’ (1962) 1 U Tasm L Rev 685.

[35]See NSWLRC 36, ch 9 & 10.

[36]Maintenance Act 1964 (NSW); Maintenance Act 1965 (Vic); Maintenance Act 1967 (Tas); Community Welfare Act 1972 (SA); Family Court Act 1975 (WA) Maintenance Act 1965 (Qld); Maintenance Act 1971 (NT); Maintenance Ordinance 1968 (ACT).

[37]Child Welfare Act 1939(NSW); Community Welfare Services Act 1970 (Vic); Child Welfare Act 1960 (Tas); Community Welfare Act 1972 (SA); Child Welfare Act 1947 (WA); Children’s Services Act 1965 (Qld); Community Welfare Act 1983 (NT); Child Welfare Ordinance 1957 (ACT).

[38]eg Infants’ Custody and Settlements Act 1899 (NSW) s 5(3).

[39]Married Persons (Property and Torts) Act 1901 (NSW) s 22; Married Women’s Property Acts 1890 (Qld) s 21; Married Women’s Property Act 1892 (WA) s 17; Law of Property Act 1936 (SA) s 105; Married Women’s Property Act 1935 (Tas) s 8; Marriage Act 1958 (Vic) Part VIII; Married Women’s Property Act 1883 (SA) as in force in the NT.

[40]Family Law Act 1975 (Cth) s 4(1)(ca)(i) (inserted 1983) defines matrimonial cause to include ‘proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings arising out of the marital relationship’. See generally Finlay, ch 8.

[41](1956) 98 CLR 229.

[42]See also Hepworth v Hepworth (1959) 110 CLR 309; Martin v Martin (1964) 116 CLR 297.

[43]Marriage Act 1958 (Vic) s 161.

[44]De Facto Relationships Act 1984 (NSW) s 14-20. For discussion see NSWLRC 36, ch 7, 9.

[45]D Kovaks, ‘Maintenance in the Magistrates’ Courts: How Fares the Forum?’ (1973) 47 ALJ 725; D Kovaks, ‘Getting Blood out of Stones: Problems in the Enforcement of Maintenance Orders from Magistrates’ Courts’ (1974) 1 Mon L Rev 67; Attorney-General’s Department, A Maintenance Agency for Australia, Report of the National Maintenance Inquiry, Canberra, 1984, esp 10-14.

[46]cf Social Security Act 1947 (Cth) s 62. See para 312.

[47]See para 225, 230, and see generally ch 33.

[48]s 44(3). See Finlay, 267-308.

[49]See para 282.

[50]eg Gissing v Gissing [1971] AC 886.

[51]See Allen v Snyder [1977] 2 NSWLR 685 which sets out general principles. For further discussion see NSWLRC 36, ch 7. And cf Murray v Heggs (1980) 6 Fam LR 781 for judicial comment on the hardships which can arise.

[52]See para 283 n 44.

[53]See para 226.

[54]See eg JC Altman & J Nieuwenhuysen The Economic Status of Australian Aborigines, Cambridge UP, Cambridge, 1979; Coombs Brandl & Snowden 237-265, 304-316; JC Altman, Aborigines and Mining Royalties in the Northern Territory, AIAS, Canberra 1983; Australian Institute of Aboriginal Studies, Aborigines and Uranium, Consolidated Report to the Minister of Aboriginal Affairs on the Social Impact of Uranium Mining on the Aborigines of the Northern Territory, AGPS, Canberra, 1984, 133-177.

[55]This conclusion was supported in a number of submissions to the Commission: Family Law Council (Justice Fogarty) Submission 285 (28 November 1983); Department of Aboriginal Affairs (JC Taylor) Submission 263 (2 February 1983). See also ACL Field Report 7, Central Australia (October 1982) 4, 8, 21.

[56]As the Family Law Council pointed out: Submission 393 (28 November 1983).

[57]For questions of construction of wills in this context, see para 336. Under the general law, marriage revokes a will previously made. In the absence of any traditional analogy to this situation, and given the infrequency with which Aborigines make wills and the definitional problems that might occur, traditional marriage should not be recognized as marriage for this purpose. See also para 333-5.

[58]Administration and Probate Act 1919 (SA) s 72. The claimant must first be declared a ‘putative spouse’ pursuant to the Family Relationships Act 1975 (SA). The consequence of such a declaration is, for the most part, to place a surviving putative spouse in the same position as a surviving married spouse. See eg Wrongs Act 1936 (SA) s 19, 20; Inheritance (Family Provision) Act 1972 (SA) s 4; Succession Duties Act 1929 (SA) s 4(1); Administration and Probate Act 1919 (SA) s 72h(2); Superannuation Act 1974 (SA) s 121(1).

[59]Children whether or not ex-nuptial, would be entitled to a share, to the exclusion of the de facto spouse.

[60]See NSWLRC 36, ch 12.

[61]Administration and Probate Act (NT) s 6(4).

[62]Administration and Probate Act (NT) s 71B. See para 339-43.

[63]eg Inheritance (Family Provision) Act 1972 (SA) s 4.

[64]In some jurisdictions a former wife must be in receipt of, or entitled to receive, maintenance.

[65]Family Provision Act 1982 (NSW) s 6; Sucession Act 1981 (Qld) s 40-1; Inheritance (Family Provision) Act 1972 (SA) s 4; Family Provision Act 1970 (NT) s 4, 7(2).

[66]Inheritance (Family and Dependants Provision) Act 1972 (WA) s 7(1)(f). There is as yet no similar provision in Tasmania: see Tas LRC, Report on Obligations Arising from De Facto Relationships, Government Printer, Hobart, 1977.

[67]cf para 285, and see para 331.

[68]Where the relevant State or Territory legislation makes no provision dividing entitlements due to spouses under family provision legislation or intestacy, it should be provided that those amounts should be equally shared between them (subject to any order for family provision, or to the exercise of a discretion to apportion on grounds of need).