Same Sex Couples: Equity's Response
 |
Click on the image at left for a 1.5MB QuickTime video clip of Mr Justice Malcolm speaking. |
1.0 INTRODUCTION
It is a fact of life that relationships can commence, develop and grow without any conscious plan on the part of the parties to the relationship. In Bryson v Bryant[1] Kirby P noted that:
"The longer such relationships exist, the more likely it is - whether by marriage, de facto relationship, same sex relationship or other form of human partnership - that property interests will become involved. [If] the relationship ends ... it will be necessary for the courts to provide for the property consequences."[2]
The property disputes which arise upon the breakdown of a domestic relationship can present particular difficulties to the courts which are required, in the words of Glass JA to: "... unravel the tangled skein of human association."[3] As Samuels JA has observed:
"Property is commonly acquired or improved for joint use, without any heed being paid to its beneficial ownership. Contributions to its purchase or improvement may be made in a variety of ways. One partner may meet all living expenses, while the other puts together a deposit on the house or unit, or saves the money to restore uninhabitable premises. It is unnecessary to multiply examples."[4]
In the case of marriage, there is a specific point of legal commitment, and an established legal and legislative framework to govern the rights and responsibilities of the parties. However, in a de facto relationship there is generally no specific point of legal commitment, and the legal and legislative framework is much less certain. This paper considers the approach of the courts to the application of equitable principles to property disputes between persons of the same sex, in the context of the approach of the courts to property disputes generally.
2.0 MARRIED COUPLES
Since 1975, the courts have been able, under s79 of the Family Law Act 1975 (Cth), to make an order which alters the existing legal or equitable interests in property of parties to a marriage in proceedings with respect to that property, provided that it is "just and equitable" to do so.[5] In considering whether to make such an order, a court is required to take into account:
the direct or indirect financial contribution made by the parties to the acquisition, conservation or improvement any of the property;
the direct or indirect contribution (other than a financial contribution) made by the parties to the acquisition, conservation or improvement of the property; and
the contribution made by the parties to the welfare of the family constituted by the parties, including any contribution made in the capacity of homemaker or parent.[6]
It is also required to take into account a variety of other factors, including the age and state of health of the parties, the income, property and financial resources of the parties and their earning capacity.[7]
In Mallet v Mallet,[8] the High Court of Australia recognised that s79 of the Family Law Act 1975 (Cth) confers a "very wide discretion"[9] on a court to: "... having had regard to the matters which the Act requires it to consider ... do what is just and equitable in all the circumstances of the particular case."[10] Gibbs CJ suggested that the matters a court was required to consider fell into two main classes.[11] As he explained:
"First, the court must consider the extent to which either party has in the past contributed to the acquisition, conservation or improvement of the property; the contribution need not have been financial. ... Secondly, the court must consider all those circumstances which relate to the present and future needs, and to the means, resources and earning capacity, actual and potential of the parties."[12]
Therefore, under the Family Law Act 1975 (Cth) the property interests of married couples could be altered on the basis of contributions to that property, whether financial or not, and on the basis of existing and future means and needs, regardless of contributions to that property.
3.0 DE FACTO COUPLES
Parties to a de facto relationship were not included within the provisions of s79 of the Family Law Act 1975 (Cth). Therefore, subject to specific legislation in some States and Territories,[13] the property rights of de facto couples have fallen to be decided in accordance with established legal and equitable principles. As Mason and Brennan JJ have noted:
"On dissolution of a marriage, s79 confer[s] a discretionary power upon ... to alter the property interests of the parties to the marriage if it is just and equitable to do so. On the termination of an association between a man and a woman who are not married to each other, no discretionary power may be exercised and the jurisdiction of the courts of equity is simply to declare the proprietary rights of the parties."[14]
3.1 Resulting Trusts
One equitable principle which can affect the beneficial interests in property of parties to a de facto relationship is the resulting trust. In general terms, a resulting trust arises: "... where the legal title to property is vested in someone other than the person who provided the money."[15] For example, where one party provides the whole of the purchase price of property, and the legal title is registered in the name of another party, or in the names of both parties, there is a presumption of law that the purchaser did not intend the other party to take their legal title beneficially, and there is said to be a resulting trust in favour of the purchaser.[16]
Similarly, where both parties provide the purchase price, and the legal title is registered in the name of one party only, there is presumption of a resulting trust in favour of the other party. Alternatively, if the legal title is registered in the names of both parties, but the parties contributed the purchase price in unequal shares, there is a presumption that the property is held by the parties in trust for each other as tenants in common according to the proportion of the purchase price contributed by each party.[17] As Deane J has put it:
"... where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it."[18]
Because the presumption of a resulting trust in these situations is based on the presumed intention of the parties, it is subject to contrary evidence of the actual intention of the party or parties advancing the purchase price.[19] As Deane J has observed:
"... the presumption operates by reference to the presumed intention of the party whose contribution exceeds his or her proportionate share; it cannot prevail over the actual intention of that party as established by the ... evidence."[20]
In Calverley v Green,[21] a de facto couple who had lived together for about 10 years purchased a residential property which was subsequently registered in both their names. The purchase price was made up of a deposit paid by Mr Calverley out of his own funds and money secured by a mortgage under which he and Miss Green were jointly and severally liable to make repayments. In effect, Miss Green contributed $9000 and Mr Calverley contributed $18 000. In these circumstances, the question for the High Court was whether there was evidence of the actual intention of the parties which could rebut the presumption that: "... the property was held upon resulting trust for themselves in shares corresponding to their respective contributions to the purchase price."[22] In other words, was there evidence which could establish that Miss Green was intended to have a beneficial interest which corresponded with her legal interest as a joint tenant.[23] In the result, it was held that there was no such evidence. As Deane J observed:
"The evidence ... discloses no adequate grounds for an inference ... that either intended that the beneficial interest in the property should be otherwise than according to their respective contributions to the actual purchase price."[24]
It is apparent that the resulting trust as a remedial mechanism is limited in two ways. First, the intention of the purchaser at the time of purchase is regarded as decisive. Secondly, only direct financial contributions to the property in question are taken into account.
An example of the first limitation is provided by the case of Muschinski v Dodds.[25] In that case, a de facto couple who had lived together for about 3 years purchased a property which was registered in both their names as tenants in common in equal shares. Mrs Muschinski provided the whole of the purchase price of the property. The parties had intended to renovate a dilapidated cottage which was on the property and construct another dwelling. Mr Dodds was to assist in the renovations and pay for the new dwelling when he received the proceeds of a divorce settlement. However, these plans were never carried out and the parties separated four years later. The High Court agreed with the conclusions reached by the trial judge and the Court of Appeal that the evidence established that, at the time of purchase, Mrs Muschinski intended to give Mr Dodds an immediate beneficial interest.[26] This was sufficient to rebut the presumption of a resulting trust which would otherwise arise. As Mason J put it:
"The evidence ... supports the finding that the common intention of the parties was that each should enjoy, from the time of purchase, an immediate and unconditional legal and beneficial one-half interest in the property. ... Accordingly there is no scope for a resulting trust."[27]
However, Mrs Muschinski was not denied a remedy, because the High Court accepted that, in the circumstances, it was appropriate to impose a constructive trust on the respective legal interests of the parties.[28] As a result, Mrs Muschinski and Mr Dodds were to hold their legal interests as tenants in common on trust to repay to each other their respective contributions, with the residue to be divided into equal shares.[29]
3.2 Constructive Trusts
One important distinction between resulting trusts and constructive trusts, is that the latter is imposed by a court regardless of the presumed or actual intention of the parties.[30] As Powell J has observed:
"... whereas express and resulting trusts are founded on the intention, be it express or presumed, of the parties, constructive trusts are imposed without regard to the intention of the parties to satisfy the demands of justice."[31]
However, the courts are not free to impose constructive trusts according to what Deane J has described as: "... idiosyncratic notions of fairness and justice."[32] The remedy of a constructive trust is only available to prevent assertions of beneficial ownership which are contrary to equitable principle.[33] In Muschinski v Dodds,[34] the basis for the imposition of a constructive trust was found in the general equitable principle that: "... prevents a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct."[35] As Deane J explained:
"... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. [Its content] is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him to do so."[36]
In Muschinski v Dodds,[37] the High Court considered a case which was primarily concerned with direct financial contributions to the property in question. If Mrs Muschinski had not clearly evinced an intention to give Mr Dodds a beneficial half interest, a just result could otherwise have been reached by applying the presumption of a resulting trust.
In the later case of Baumgartner v Baumgartner,[38] the High Court considered a more common situation in which the resources of a de facto couple had been pooled to meet their ongoing expenses. Leo and Frances Baumgartner were in a de facto relationship for about 6 years. During that time, Frances changed her name by deed poll and they had a child. However, they never married. After they had cohabited for about a year in a home unit in Cabramatta, Leo Baumgartner bought a block of land at a place called Leumeah. The property was registered in his name only. A year later the Cabramatta home unit was sold and the parties moved into rented accommodation, pending completion of the construction of a house on the Leumeah property. During the period of their cohabitation the parties pooled their resources. Frances gave Leo her pay packets. Leo paid their accommodation and other living expenses. The aggregate earnings contributed to the pooled resources were estimated at about $90 000 during the period of cohabitation. About 55% of this sum was contributed by Leo, and about 45% by Frances. By the time the parties relationship ended the Leumeah property was valued at about $70 000.
In these circumstances, the High Court held that a constructive trust should be imposed on Leo's legal interest in the Leumeah property.[39] Mason CJ, Wilson and Deane JJ reached that conclusion by applying the principle identified by Deane J in Muschinski's case, namely that in the circumstances of the joint relationship established by the parties it was unconscionable for Leo to assert, after the relationship failed, that he had the sole beneficial interest in the Leumeah property.[40] Mason CJ, Wilson and Deane JJ described the financial arrangements which had been adopted by Leo and Frances in the following terms:
"... the parties pooled their earnings with a view to meeting all the expenses and outgoings arising from their living together as a family. The individual contributions of each party were not allocated to a particular category or particular categories of outgoings. The pool of earnings was used to pay outgoings associated with accommodation - mortgage instalments on the unit at Cabramatta and the property at Leumeah - as well as other living expenses."[41]
Having noted that Leo and Frances had been in a long-term stable relationship, for the purposes of which the Leumeah property had been acquired, the Leumeah house planned, built, moved into, and made a home,[42] Mason CJ, Wilson and Deane JJ observed that:
"In this situation it is proper to regard the arrangement for the pooling of earnings as one which was designed to ensure that their earnings would be expended for the purposes of their joint relationship and for their mutual security and benefit."[43]
It was this finding which provided the basis for the imposition of a constructive trust, on the ground that what Deane J had referred to in Muschinski's case as the "substratum of [the] joint relationship or endeavour"[44] had failed. As Mason CJ, Wilson and Deane JJ stated that conclusion:
"This case is ... one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of the furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant's assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property ... amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent."[45]
Where a court imposes a constructive trust, the second stage is to determine the terms of the trust.[46] In Baumgartner's case Mason CJ, Wilson & Deane JJ suggested that where parties have lived together for a significant period of time during which they have pooled their resources and efforts to establish a joint home:
"... there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to an adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind."[47]
In that case, it was held that the differences in contribution between the parties could not be regarded as "relatively insignificant" and therefore the beneficial interests of the parties were declared in the proportions 55% to Leo and 45% to Frances.[48] In addition, "in the interests of justice" other adjustments were required, such as Leo being given a credit for the net proceeds of the sale of his home unit in Cabramatta, which were put towards the purchase of the Leumeah property, subject to an appropriate deduction for mortgage payments which hade been made on the unit from pooled resources.[49]
It is clear from Baumgartner's case that, in appropriate circumstances, indirect financial contributions to the purchase of property can provide the basis for the imposition of a constructive trust. There are also indications that direct, and perhaps indirect, non-financial contributions to property may be taken into account. For example, Mason CJ, Wilson and Deane JJ referred to "contributions, financial and otherwise"[50] and "individual contributions either financially or in kind"[51] and Gaudron J suggested that in the context of a domestic relationship, non-financial contributions might have to be taken into account.[52] In Muschinski's case, Deane J had referred to the need to take account of: "... a practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, home- making and family care."[53]
Since Baumgartner's case the lower courts have attempted to delineate the limits of the principles which it established. In Hibberson v George,[54] it was recognised that parties may "pool their resources" without paying funds into a joint bank account,[55] and that it may be sufficient that one party uses earnings: "... for the benefit of the joint relationship."[56] In Miller v Sutherland,[57] it was recognised that there may be a "pooling of resources" where no funds are contributed, but labour is expended.[58] In that case, the plaintiff's father, a builder, had expended considerable unpaid time, on his daughter's behalf, renovating the property in which she and the defendant subsequently lived. Cohen J concluded that:
"... there was a pooling of labour by or on behalf of both parties and the contribution of money for materials by the defendant. The clearly implied intention of the parties was to use that labour and money for the purpose of providing a home for both parties and increasing its value for the legal owner, the defendant. In those circumstances it would ... be unconscionable of the defendant to deny to the plaintiff an equitable interest in the house and accordingly a constructive trust will arise."[59]
In Lipman v Lipman,[60] it was considered unconscionable for a man to deny his de facto wife a beneficial interest in his assets where she had worked long hours in his business to assist him to get established, and applied substantially the whole of her own income towards meeting household expenses.[61]
3.3 Statutory Rights
In 1984, the De Facto Relationships Act 1984 (NSW) was enacted.[62] Its purpose was to remedy what was regarded as a deficiency in general law principles in their application to property disputes between de facto couples. The nature of that deficiency was described in the New South Wales Law Reform Commission's Report on De Facto Relationships as follows:
"... the [general] law ... does not allow recognition, in the context of property disputes, of substantial indirect or non-financial contributions made by one [de facto] partner to the well-being of the family generally, or to the other [de facto] partner."[63]
What the New South Wales Law Reform Commission ("the Commission") recommended, and what was subsequently implemented in the NSW Act, was what it called an "adjustive" jurisdiction for de facto couples similar to that which applied under the Family Law Act 1975 (Cth) in relation to married couples.[64] Thus, the courts were empowered to adjust the interests in property of de facto partners as seemed "just and equitable" having regard to:
In arriving at its recommendation, the Commission considered, and rejected, the possibility of "amending" the general law of trusts to provide for recognition of indirect and non-financial contributions of parties to a domestic relationship.[66] Thus, it was clearly intended that the "adjustive" jurisdiction would exist side by side with the general law, while allowing a court to alter the legal and equitable rights recognised by the general law. As Handley JA has observed in relation to the NSW Act:
"The power [to adjust property interests] is not limited to situations where relief could be granted on equitable grounds under the general law."[67]
It is perhaps worth noting that the NSW Act, and the Report on which it was based, pre-dated the decisions of the High Court in Muschinski's case and Baumgartner's case. This led Mahoney JA, in the recent case of Wallace v Stanford,[68] to observe that:
"... the circumstances which led the High Court to conclude that property acquired and intended to be held separately must be held jointly may arguably remove many of the reasons seen by the Law Reform Commission of New South Wales as requiring the enactment of the De Facto Relationships Act 1984."[69]
This comment suggests that equitable principles, as they are now understood to apply to de facto relationships, may be leading to results which are more and more similar to those which could be obtained under De Facto Relationships legislation or the Family Law Act 1975 (Cth).
4.0 SAME SEX COUPLES
There is no indication in the judgments of Australian courts that the equitable principles applied to determine the property interests of de facto couples are not equally applicable to the property interests of same sex couples. In Harmer v Pearson,[70] the Full Court of the Supreme Court of Queensland did not doubt that the principles of Baumgartner's case could apply to the property interests of a same sex couple, though, on the facts, they were held not to apply.[71] As Pincus JA noted:
"... there was evidence of a pooling of resources which might well, but for the agreement I have mentioned, have required the court to enter upon such an analysis of contributions as was made in Baumgartner."[72]
Similarly, in Bryson v Bryant,[73] Kirby P suggested that a constructive trust of the type identified in Baumgartner's case was available to "... parties to a de facto marriage or same sex relationship."[74]
This approach is consistent with a general policy of legal indifference, on the part of the courts, to the particular nature of a domestic relationship. For example, in Calverley's case, Gibbs CJ, in suggesting that the presumption of advancement applicable to resulting trusts should apply to de facto relationships as well marriages, observed that: "... any notion of moral disapproval ... [is] inappropriate to the resolution of disputes as to property in the twentieth century."[75]
Similarly, in Allen v Snyder,[76] Glass JA suggested that:
"... the rules, however they come to be formulated, ought to apply indifferently to all property relationships arising out of cohabitation in a home legally owned by one member of the household, whether that cohabitation be heterosexual, homosexual, dual or multiple in nature."[77]
This policy may be partly attributable to a recognition by the courts that what Glass JA has called the "velocity of social change"[78] has led to an increasing number of domestic relationships which do not, for one reason or another, involve marriage.[79] For example, in Hayward v Giordani,[80] Cooke J observed that:
"There may be a lingering sense that the law should refuse to recognise [de facto] relationships ... as having any bearing on property rights if they fall short of legal wedlock. But a function of the Courts must be to develop ... equity so as to reflect the reasonable dictates of social facts, not to frustrate them."[81]
However, the policy is also attributable to a recognition that, as a matter of principle, the particular nature of a domestic relationship is not a valid ground for distinction in applying equitable remedies. For example, in Baumgartner v Baumgartner,[82] Toohey J noted that the fact that the parties had been in a de facto relationship, rather than a marriage, was no barrier to declaring the existence of a constructive trust. As he observed:
"The object of a constructive trust is to redress a position which otherwise leaves untouched a situation of unconscionable conduct or unjust enrichment. It is equally applicable to persons in a de facto relationship as it is to spouses."[83]
In other words, given that the object of equitable intervention is to provide a remedy against unconscionable conduct by a party to a domestic relationship, the particular nature of that relationship is logically irrelevant to the availability of the remedy.
In Canada, no distinction has been made between same sex couples and other de facto couples in applying equitable principles relating to property interests. For example, in Anderson v Luoma[84] Dohm J of the British Columbia Supreme Court held that ordinary equitable principles should be applied to the property interests of the parties to a long standing lesbian relationship, while noting that:
"... seeking to determine if a trust arrangement exists between two people of the same gender and living together for some ten years is not exactly something the court does every day of the week."[85]
In that case, the parties were in a de facto relationship for about 10 years. Ms Luoma had purchased three properties before the relationship commenced: a home in Wellington, and investment properties in Richmond and on the Sechelt Peninsula. The Wellington home, in which the parties resided, was subject to an agreement for sale, which was eventually paid off about 9 years after the relationship commenced. Repayments under the agreement for sale were made from a joint account. Repayments on the Sechelt property, which was paid off about 3 years before the relationship ended, were also made from the joint account. However, repayments on the Richmond property were met from rental receipts.
About three years before the relationship ended, the Wellington home was renovated, at a cost of about $50 000. The renovation was funded from the joint account, together with a loan of $30 000 taken out by Ms Luoma, and $10 000 borrowed by Ms Anderson from her father. Both loans were eventually discharged from the joint account.
During the relationship, Ms Anderson was sometimes in paid employment, and sometimes took care of the house, and two children born through artificial insemination procedures. It was estimated that during the course of the relationship she had contributed a total of about $80 000 to the joint account. In addition, she took an active role in the Wellington home renovations, carrying out many of the organisational tasks that would otherwise be carried out by a building contractor.
In these circumstances, Dohm J declared a constructive trust which gave Ms Anderson a half share in the Wellington property and a 20% interest in the Sechelt property.[86] However, he declined to make any order in respect of the Richmond property, on the basis that: "... [it] was acquired by the defendant before the relationship with the plaintiff commenced and it was self- sustaining and required no funds from the parties' bank accounts."[87] The constructive trust was imposed on the basis of a test set out by the Supreme Court of Canada in Pettkus v Becker.[88]
In that case, Dickson J referred to three requirements for the imposition of a constructive trust: "... an enrichment, a corresponding deprivation and absence of any juristic reason (such as contract) for the enrichment."[89] In the later case of Sorochan v Sorochan,[90] it was explained that while there should be a causal link between the "corresponding deprivation" and the property in issue, this did not mean there had to be a financial contribution to the acquisition of the property. It was said that: "... a contribution relating to the preservation, maintenance or improvement of property may also suffice."[91]
In Anderson v Luoma,[92] Dohm J found with respect to the first requirement[93] that Ms Anderson's "contribution to the global picture was significant" and that it was: "... self-evident that [Ms Luoma] received the benefit of [her] labours."[94] With respect to the second requirement,[95] he found that Ms Anderson had been: "... deprived of the ability to make an estate for herself."[96] This provided the basis for the imposition of a constructive trust. The difference in the interests declared in favour of Ms Anderson over the Sechelt and Wellington properties reflected the differing contributions she had made to the properties. As Dohm J explained:
"Joint funds were used to pay off the mortgage on the Sechelt property for some six or seven years, but beyond that there is little by way of contribution by the plaintiff. The Wellington property is quite different. Not only were joint funds used to pay off the agreement for sale for some eight years, but the plaintiff also contributed in many other ways to enhance the value of the property."[97]
In the later Canadian case of Forrest v Price,[98] Boyd J of the British Columbia Supreme Court also applied ordinary equitable principles to the property interests of a same sex couple. In that case, the parties were in a de facto relationship for about 13 years. The property in issue was the former residential home in Mathers Avenue, West Vancouver. When the relationship commenced, Mr Forrest moved into the defendant's home. Shortly afterwards, he resigned from his job and from that time on, save for a short period of about a year towards the end of the relationship, did not work outside the home. As Boyd J put it: "... throughout this relationship the parties assumed the classic roles and the division of labour characteristic of many traditional heterosexual marriages."[99] Two years after the relationship commenced, the parties moved to a 10 acre farm, the reclaiming and development of which was largely a result of Mr Forrest's efforts.[100] Six years later, the parties sold the farm and moved to a property in Altamount, West Vancouver. Again, Mr Forrest did a good deal of renovation work.[101] Three years later, the parties sold the Altamount property and moved to the Mathers Avenue property. All the properties in which the parties resided, had been registered in Mr Price's name only.
With respect to the first requirement, Boyd J concluded that there was an enrichment, observing that:
"While it may be difficult to measure ... the degree to which the plaintiff's work enhanced the values of the various properties, I am satisfied that the defendant derived a benefit from the plaintiff's years of labour both on the farm and in the city homes ... that his labour directly and substantially contributed to the maintenance and preservation of the Mathers property and all previous property ... [and that] whatever the plaintiff's earnings, they were deposited to the family's coffers."[102]
With respect to the second requirement, Boyd J found that Mr Forrest had suffered a deprivation by: "... the fulltime devotion of [his] labour to the defendant's properties without any compensation beyond his sharing of the defendant's comfortable lifestyle."[103] In addition, Boyd J concluded that there was: "... [a sufficient connection between the efforts of the plaintiff (ie preservation, maintenance and improvement of the various familial residences) and the Mathers property."[104] In the result, Boyd J imposed a constructive trust which gave Mr Forrest a one third share in the Mathers Avenue property. This order took account of a large amount of separate capital contributed by Mr Price to joint funds in the latter years of the relationship from the sale of shares in a family holding company.[105]
It is true that the Canadian cases rely on the doctrine of "unjust enrichment". However, in Baumgartner v Baumgartner,[106] Toohey J concluded that the notion of unjust enrichment adopted by the Canadian courts was: "... at much at ease with the authorities and is as capable of ready and certain application as is the notion of unconscionable conduct."[107] As he observed:
"... where two people have lived together for a time and made contributions towards the purchase of land or the building of a home on it, an approach based on unconscionable conduct or unjust enrichment will inevitably bring about the same result."[108]
In this respect, it is interesting to note the comment of Kirby P in Bryson v Bryant,[109] where he suggested that:
"In due course, it may be possible for the [relevant] legal principles to move to a higher plane of conceptual principle. It may be feasible to express the common principle which lies behind the imposition of a [constructive] trust and the provision of relief against unjust enrichment."[110]
4.2 Statutory Rights
Of the current legislation relating to de facto couples, it is only the Domestic Relationships Act (ACT) which is capable of applying to same sex couples. In that legislation, a "domestic relationship" is defined to mean:
"a personal relationship (other than a legal marriage) between 2 adults in which 1 provides personal or financial commitment and support of a domestic nature for the material benefit of the other;"[111]
In contrast, the De Facto Relationships Act 1984 (NSW) defines a "de facto partner" as meaning:
The more restrictive definition adopted by the NSW Act is consistent with the decision of the NSW Law Reform Commission not to cover in its Report on De Facto Relationships the whole field of domestic relationships.[113] In this respect, the Commission noted that:
"... the law now distinguishes between the legal position of parties to a de facto relationship and people living in other forms of domestic relationships. ... The distinction ... accepts that de facto relationships resemble marriage to a certain extent, although not in all respects. It is this partial resemblance which has prompted legislators and policy makers specifically to confer rights and impose obligations on de facto parties in certain situations. Other domestic relationships bear less resemblance to marriage."[114]
It is arguable that the distinction made by the law between de facto relationships and other forms of domestic relationship to which the Commission referred is not as great today as it appeared to be when the Commission published its Report in 1983. That would certainly appear to be the trend discernible in recent court decisions, a trend which is arguably reflected in the convergence of equitable and legislative principles which Mahoney JA identified in Wallace v Stanford.[115]
5.0 CONCLUSION
In Brown v Brown[116] Kirby P noted:
"... the general desirability that the law should not be expressed in terms which differentiate between people on the ground of their gender unless the differentiation is firmly based upon rational grounds supported by fact, not mere prejudice, stereotype or history received from earlier times."[117]
This injunction could equally well be stated in terms which provided that the law should not differentiate between people on the ground of their sexual orientation. However, I think it can fairly be said, in the light of the matters that I have discussed, that the approach of the courts to the application of equitable principles to relationships between same sex couples does not differentiate in that way.[118]
Notes
[1] (1992) 16 Fam LR 112.
[2] Bryson v Bryant (1992) 16 Fam LR 112 at 117.
[3] Allen v Snyder [1977] 2 NSWLR 685 at 689.
[4] Allen v Snyder [1977] 2 NSWLR 685 at 697.
[5] See Family Law Act 1975 (Cth) s79 (1) & (2).
[6] See Family Law Act 1975 (Cth) s79 (4) (a), (b) & (c).
[7] See Family Law Act 1975 (Cth) s79 (4) (d), (e) & s75 (2) (a), (b) & (k).
[8] (1984) 156 CLR 605.
[9] Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ. See also at 636 per Wilson J.
[10] Mallet v Mallet (1984) 156 CLR 605 at 609 per Gibbs CJ.
[11] See Mallet v Mallet (1984) 156 CLR 605 at 608.
[12] Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ.
[13] See De Facto Relationships Act 1984 (NSW); Property Law Act 1958 (Vic) Pt. IX; Domestic Relationships Act 1994 (ACT).
[14] Calverley v Green (1984) 155 CLR 242 at 260-61.
[15] Brown v Brown (1993) 31 NSWLR 582 at 588 per Gleeson CJ.
[16] See Calverley v Green (1984) 155 CLR 242 at 246 per Gibbs CJ, at 255 per Mason & Brennan JJ, at 266 per Deane J.
[17] See Calverley v Green (1984) 155 CLR 242 at 246-47 per Gibbs CJ, at 258 per Mason & Brennan JJ, at 266-67 per Deane J.
[18] Calverley v Green (1984) 155 CLR 242 at 266-67.
[19] See Calverley v Green (1984) 155 CLR 242 at 251 per Gibbs CJ, at 258 per Mason & Brennan JJ; Muschinski v Dodds (1985) 160 CLR 583 at 590 per Gibbs CJ, at 612 per Deane J.
[20] Muschinski v Dodds (1985) 160 CLR 583 at 612 per Deane J.
[21] (1984) 155 CLR 242.
[22] Calverley v Green (1984) 155 CLR 242 at 268 per Deane J. See also at 261 per Mason & Brennan JJ.
[23] See Calverley v Green (1984) 155 CLR 242 at 259 per Mason & Brennan JJ.
[24] Calverley v Green (1984) 155 CLR 242 at 271 per Deane J.
[25] (1985) 160 CLR 583.
[26] See Muschinski v Dodds (1985) 160 CLR 583 at 591 per Gibbs CJ, at 598-99 per Mason J, at 611 per Deane J.
[27] Muschinski v Dodds (1985) 160 CLR 583 at 598-99.
[28] See Muschinski v Dodds (1985) 160 CLR 583 at 599 per Mason J, at 623 per Deane J & at 598 per Gibbs CJ.
[29] See Muschinski v Dodds (1985) 160 CLR 583 at 623-24 per Deane J.
[30] See Muschinski v Dodds (1985) 160 CLR 583 at 614 per Deane J; Allen v Snyder [1977] 2 NSWLR 685 at 690 per Glass JA, at 699 per Sa muels JA; Baumgartner v Baumgartner (1987) 164 CLR 137 at 146-47 per Mason CJ, Wilson & Deane JJ, Hibberson v George (1989) 12 Fam LR 725 at 743 per McHugh J; Gre en v Green (1989) 17 NSWLR 343 at 370 per Mahoney JA.
[31] Lipman v Lipman (1989) 13 Fam LR 1 at 19.
[32] Muschinski v Dodds (1985) 160 CLR 583 at 615.
[33] See Muschinski v Dodds (1985) 160 CLR 583 at 614 per Deane J.
[34] (1985) 160 CLR 583.
[35] Muschinski v Dodds (1985) 160 CLR 583 at 620 per Deane J.
[36] Muschinski v Dodds (1985) 160 CLR 583 at 620.
[37] (1985) 160 CLR 583.
[38] (1987) 164 CLR 137.
[39] See Baumgartner v Baumgartner (1987) 164 CLR 137 at 149 per Mason CJ, Wilson & Deane JJ, at 152 per Toohey J, at 157 per Gaudron J.
[40] See Baumgartner v Baumgartner (1987) 164 CLR 137 at 149 per Mason CJ, Wilson & Deane JJ.
[41] Baumgartner v Baumgartner (1987) 164 CLR 137 at 148.
[42] See Baumgartner v Baumgartner (1987) 164 CLR 137 at 148-49
[43] Baumgartner v Baumgartner (1987) 164 CLR 137 at 149.
[44] Muschinski v Dodds (1985) 160 CLR 583 at 620 per Deane J.
[45] Baumgartner v Baumgartner (1987) 164 CLR 137 at 149.
[46] See for example Hibberson v George (1989) 12 Fam LR 725 at 742 per McHugh J; Miller v Sutherland (1990) 14 Fam LR 416 at 424 per Cohen J; Lipman v Lipman (1989) 13 Fam LR 1 at 22 per Powell J.
[47] Baumgartner v Baumgartner (1987) 164 CLR 137 at 149-50.
[48] See Baumgartner v Baumgartner (1987) 164 CLR 137 at 150 per Mason CJ, Wilson & Deane JJ.
[49] See Baumgartner v Baumgartner (1987) 164 CLR 137 at 150 per Mason CJ, Wilson & Deane JJ.
[50] See Baumgartner v Baumgartner (1987) 164 CLR 137 at 149.
[51] See Baumgartner v Baumgartner (1987) 164 CLR 137 at 150.
[52] See Baumgartner v Baumgartner (1987) 164 CLR 137 at 156.
[53] Muschinski v Dodds (1985) 160 CLR 583 at 622.
[54] (1989) 12 Fam LR 725.
[55] See Hibberson v George (1989) 12 Fam LR 725 at 739 per Mahoney JA.
[56] Hibberson v George (1989) 12 Fam LR 725 at 743 per McHugh J. Appellant furnished joint home.
[57] (1990) 14 Fam LR 416.
[58] See Miller v Sutherland (1990) 14 Fam LR 416 at 424.
[59] Miller v Sutherland (1990) 14 Fam LR 416 at 424 per Cohen J.
[60] (1989) 13 Fam LR 1.
[61] See Lipman v Lipman (1989) 13 Fam LR 1 at 21 per Powell J.
[62] See now also Property Law Act 1958 (Vic) Part IX; Domestic Relationships Act 1994 (ACT).
[63] NSW Law Reform Commission (NSWLRCR 36, June 1983) at 5.9.
[64] See NSW Law Reform Commission (NSWLRCR 36, June 1983) at 7.58.
[65] See Domestic Relationships Act 1984 (NSW) s20 (1) (a) & (b).
[66] See NSW Law Reform Commission (NSWLRCR 36) at 7.53 - 7.57.
[67] Dwyer v Kaljo (1992) 27 NSWLR 728 at 744.
[68] (1995) 37 NSWLR 1.
[69] Wallace v Stanford (1995) 37 NSWLR 1 at 8.
[70] (1993) 16 Fam LR 596.
[71] See Harmer v Pearson (1993) 16 Fam LR 596 at 598 per Fitzgerald P & de Jersey J, at 600 per Pincus JA.
[72] Harmer v Pearson (1993) 16 Fam LR 596 at 600.
[73] (1992) 16 Fam LR 112.
[74] Bryson v Bryant (1992) 16 Fam LR 112 at 125.
[75] Calverley v Green (1984) 155 CLR 242 at 250.
[76] [1977] 2 NSWLR 685.
[77] Allen v Snyder [1977] 2 NSWLR 685 at 689.
[78] Allen v Snyder [1977] 2 NSWLR 685.
[79] In its 1983 Report on De Facto Relationships, the NSW Law Reform Commission noted that the number of people living in de facto relationships in Australia had increased four fold between 1971 and 1976, and more than doubled between 1976 and 1982: see NSWLRCR 36 at 3.8 (p. 43). See also Bryson v Bryant (1992) 16 Fam LR 112 at 117 per Kirby P.
[80] [1983] NZLR 140.
[81] Hayward v Giordani [1983] NZLR 140 at 148.
[82] (1987) 164 CLR 137.
[83] Baumgartner v Baumgartner (1987) 164 CLR 137 at 154 per Toohey J.
[84] (1986) 50 RFL 127.
[85] Anderson v Luoma (1986) 50 RFL 127 at 151.
[86] See Anderson v Luoma (1986) 50 RFL 127 at 153 per Dohm J.
[87] Anderson v Luoma (1986) 50 RFL 127 at 152 per Dohm J.
[88] (1980) 117 DLR (3d) 257.
[89] Pettkus v Becker (1980) 117 DLR (3d) 257 at 274.
[90] (1986) 29 DLR (4th) 1.
[91] Sorochan v Sorochan (1986) 29 DLR (4th) 1 at 10 per Dickson CJC.
[92] (1986) 50 RFL 127.
[93] That is, an "unjust enrichment".
[94] Anderson v Luoma (1986) 50 RFL 127 at 152 per Dohm J.
[95] That is, a "corresponding deprivation".
[96] Anderson v Luoma (1986) 50 RFL 127 at 152 per Dohm J.
[97] Anderson v Luoma (1986) 50 RFL 127 at 153 per Dohm J.
[98] [1992] BCJ No. 2299.
[99] [1992] BCJ No. 2299 at 2.
[100] See Forrest v Price [1992] BCJ No. 2299 at 2-3 per Boyd J.
[101] See Forrest v Price [1992] BCJ No. 2299 at 3 per Boyd J.
[102] Forrest v Price [1992] BCJ No. 2299 at 7-8 per Boyd J.
[103] Forrest v Price [1992] BCJ No. 2299 at 9 per Boyd J.
[104] Forrest v Price [1992] BCJ No. 2299 at 12 per Boyd J.
[105] See Forrest v Price [1992] BCJ No. 2299 at 13 per Boyd J.
[106] (1987) 164 CLR 137.
[107] Baumgartner v Baumgartner (1987) 164 CLR 137 at 153.
[108] Baumgartner v Baumgartner (1987) 164 CLR 137 at 154.
[109] (1992) 16 Fam LR 112.
[110] Bryson v Bryant (1992) 16 Fam LR 112 at 119. See also Muschinski v Dodds (1985) 160 CLR 583 at 617 per Deane J.
[111] Domestic Relationships Act 1994 (ACT) s3 (1).
[112] De Facto Relationships Act 1984 (NSW) s3 (1). See similar definition in Property Law Act 1958 (Vic) s3 (1).
[113] See NSW Law Reform Commission (NSWLRCR 36, June 1983) at 1.3-1.4 (pp 21-22).
[114] NSWLRCR 36 at 1.4 (p 22).
[115] (1995) 37 NSWLR 1.
[116] (1993) 31 NSWLR 582.
[117] Brown v Brown (1993) 31 NSWLR 582 at 599.
[118] I wish to acknowledge the assistance of Mr J Curthoys of the Western Australian Bar in the preparation of this paper.