An examination of changing attitudes and law regarding relationships prior to and following the framing of the Australian Constitution

This paper presents the findings of an investigation into Australian laws applicable to married couples and non-married couples in the event of a breakdown of the relationship. Research was conducted from 1998 until 2000. The aim of the paper is to change the current practice of state and territorial legislation being administered in those cases where a de facto relationship breaks down but Commonwealth legislation applied where the break down of a marriage occurs.

This message is directed at both the legal fraternity and State and Commonwealth governments. These organisations are considered to have a major influence in the area of family law.

The effect of the current State and Territorial legislation pertaining to de facto relationships is inconsistent application of law to ordinary Australians. Since exercising its powers under the Australian Constitution, the Commonwealth removed the diversity that existed when marriage and divorce fell under State legislation, and delivered instead uniformity and consistency in these areas.

The findings reveal that society is registering rapid change in its attitude to relationships compared to that of a few generations ago. The suggestion of this paper is for a practical change to the current system of altering the financial and property interests of heterosexual de facto couples. As a result of those same shifting social attitudes, issues related to ex-nuptial children were referred from the States to the Commonwealth. The present position regarding current de facto legislation would indicate, and social attitude appears to agree, that it is time to bring matters related to the break down of a de facto couple's relationship under the same jurisdiction.