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RELATIONSHIPS BILL 2007 Explanatory Memoranda

RELATIONSHIPS BILL 2007

                 Relationships Bill 2007

                          Introduction Print

               EXPLANATORY MEMORANDUM


                                   General
The Relationships Bill 2007 (the Bill) establishes a Relationship Register for
the registration of domestic relationships in Victoria.
The Bill builds on reforms in 2001 when a large number of Victorian Acts
were amended to recognise the rights and obligations of partners in domestic
relationships, irrespective of the gender of each partner.
In broad terms, the Bill also aligns with the Relationships Act 2003 of
Tasmania, which commenced in January 2004. Tasmania was the first
jurisdiction in Australia to establish a registration scheme to provide formal
recognition of relationships.
The Relationships Register will allow Victorian couples in registrable
domestic relationships to register their relationship with the Registrar of
Births, Deaths and Marriages (the Registrar).
Registration will provide conclusive proof of the existence of a domestic
relationship. Partners in registered relationships will not have to provide any
further evidence to establish that their relationship exists. This will make it
easier for domestic partners to access their rights under Victorian law.
The Bill also provides a single location for statutory requirements governing
property matters in the event of a breakdown of a domestic relationship.
The Bill provides for the enforcement of relationship agreements made
between domestic partners, allows for the adjustment of property interests
between domestic partners and establishes a limited scheme for maintenance.
The Bill repeals Part IX of the Property Law Act 1958, which currently
deals with the property of domestic partners, and incorporates these
provisions, making some amendments to accord with additional provisions
relating to maintenance and relationship agreements.
Lastly, the Bill makes consequential amendments to other Victorian Acts that
currently recognise domestic partners and relationships, in order to make
provision for registered relationships. Where a relationship is not registered,
the current definition that applies in various pieces of legislation, and the
criteria to establish the existence of the relationship, will continue to apply.

561144                                 1      BILL LA INTRODUCTION 4/12/2007

 


 

These criteria, currently located in the Property Law Act 1958 are now located in this Bill. Clause Notes CHAPTER 1--INTRODUCTION PART 1.1--PRELIMINARY Clause 1 sets out the purpose of the Bill. The purpose of the Bill is to-- · establish a register for the registration of domestic relationships in Victoria; · provide for relationship agreements; · provide for the adjustment of property interests between partners; · provide for the rights of domestic partners to maintenance; · repeal Part IX of the Property Law Act 1958; · make consequential amendments to Victorian Acts that currently recognise domestic partners and relationships, in order to make provision for registered relationships. Clause 2 provides for the commencement of the Bill. The Bill, including the consequential amendments to other Acts in Schedule 1 to the Bill, will commence on a day or days to be proclaimed. However, the Bill will come into operation on 1 December 2008 if it is not proclaimed before that date. Schedule 1 includes consequential amendments to the Freedom of Information Act 1982 and the Consumer Credit (Victoria) Act 1995. However, if the consequential amendments to those Acts do not come into operation before 1 July 2009, they will come into operation on that day. This extended commencement date is necessary to match the commencement date for amendments to those Acts that are currently before the Parliament. Clause 3 sets out the definitions that apply across the Bill. 2

 


 

CHAPTER 2--REGISTRATION OF DOMESTIC RELATIONSHIPS PART 2.1--PRELIMINARY Clause 4 sets out the purpose of Chapter 2 of the Bill. The purpose of the Chapter is to establish a relationships register in Victoria for the registration of domestic relationships. Clause 5 sets out the definitions that apply in Chapter 2. The definitions include a definition of registrable relationship, which describes the relationship that can be registered under the Bill. It applies irrespective of the gender of the persons in the relationship. A registrable relationship means a relationship, other than a registered relationship, between two adults who are not married to each other but are a couple where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other. A couple does not necessarily have to be living together to be in a registrable relationship. A registrable relationship does not include a relationship in which a person simply provides domestic support and personal care to the other person for fee or reward, such as on a commercial or for profit basis. PART 2.2--REGISTRATION OF A REGISTRABLE RELATIONSHIP Clause 6 provides that two persons who are in a registrable relationship may apply to the Registrar for registration of that relationship. They must live in Victoria and cannot be married or in relationship that is already registered in Victoria, or in another relationship that could be registered in Victoria. Clause 7 provides that an application for registration must include or be accompanied by a statutory declaration that each party consents to registration and meets the other requirements for registration. The application must also be accompanied by evidence of the identity and age of each applicant. This is because a registrable relationship is a relationship between 2 adults, aged 18 years or more. A fee will be payable for making the application. Clause 8 allows the Registrar to require persons who have applied to register their relationship to provide any further information required for the purposes of determining their application. 3

 


 

Clause 9 allows one or both of the persons who have applied to register their relationship to withdraw their application. The withdrawal form must be given to the Registrar within 28 days after the persons have made their application. Clause 10 provides that, unless the application for registration is withdrawn, the Registrar may register the relationship within a reasonable period after the expiry of 28 days from the date the application was made or after further information required by the Registrar is provided. The Registrar may also refuse to register the relationship. This clause does not preclude the Registrar from refusing an application that does not meet the requirements for registration set out in clause 7 of the Bill before the expiry of the 28 days. Clause 11 provides for the revocation of the registration of a registered relationship. Registration is automatically revoked by the death or marriage of either person in the relationship. It may also be revoked if one or both of the persons in the relationship apply to the Registrar for revocation. The process for such an application is set out in clause 12 of the Bill. The clause also notes that clause 16 of the Bill provides that a court may order the revocation of the registration, and that the Victorian Civil and Administrative Tribunal may revoke the registration on an application for review under clause 28 of the Bill. Clause 12 sets out how one or both of the persons in a registered relationship may apply to the Registrar for revocation of the registration of the relationship. If only one of the persons in the relationship applies, they must notify the other person in the relationship by serving them with a copy of the revocation application and provide the Registrar with proof of this service. In these circumstances, the Registrar cannot consider a revocation application that is not accompanied by proof of service unless the Registrar has, on application, determined that service can be dispensed with. A fee will be payable for making a revocation application. Clause 13 sets out how a copy of a revocation application made by only one person in a registered relationship may be served on the other person in the relationship, and how to prove service. The application may be served by personally delivering the application to the other person or by sending it by registered post. Proof of service is by statutory declaration. 4

 


 

Clause 14 allows a person who has made a revocation application to withdraw the application. The withdrawal form must be given to the Registrar within 90 days of the application having been made. The withdrawal form must be signed by both persons in the relationship, which indicates that both consent to the continuing registration of their relationship. Clause 15 provides that, after the expiry of 90 days from the date the revocation application was made, the Registrar must revoke the registration unless the application has been withdrawn or a court or tribunal directs otherwise. Clause 16 provides that a court, on application by an interested person or on the court's own motion, may order the revocation of the registration of a registered relationship. For example, this would allow a court dealing with property matters arising from a registered relationship that has broken down to order the revocation as a way of finally determining the relationship. PART 2.3--THE RELATIONSHIPS REGISTER Division 1--Keeping the Relationships Register Clause 17 provides for the form, function and maintenance of the Relationships Register. Division 2--Registrar's powers of inquiry Clause 18 sets out the Registrar's powers of inquiry in relation to the Relationships Register. The Registrar may conduct an inquiry to find out particulars to verify information given for, or in connection with, an application for registration or revocation. The Registrar may also conduct an inquiry to find out whether the particulars of a registered relationship have been correctly recorded. Division 3--Correction and amendment of Relationships Register Clause 19 sets down when the Registrar may or must make a correction of or amendment to the Relationships Register. The Registrar may correct or amend the Register to reflect a Division 2 inquiry finding or to make the Register comply with the most reliable information available. The Registrar must correct or amend the Register if required to do so by a court or tribunal. 5

 


 

The Registrar may also add registrable information to an entry in the Relationships Register. On payment of a fee, a person may apply to Registrar for additional registrable information to be included in an entry. Division 4--Access to and certification of Register entries Clause 20 requires the Registrar, as far as practicable, to protect the privacy of persons to whom the entries in the Relationships Register relate, as well as any other persons named in those entries, when providing information extracted from the Register. Clause 21 provides that, upon application, the Registrar may search the Relationships Register for an entry about a particular registered relationship. The Registrar may reject the application if the applicant does not have an adequate reason for wanting the information, having regard to the connection between the applicant and the subjects of the entry, the age of the entry, the contents of the entry and any other relevant factors. An application must be accompanied by the prescribed fee. Clause 22 provides for the issue by the Registrar of a certificate upon completion of a search of the Relationships Register, and upon payment of the prescribed fee by the applicant. The Registrar can certify details from the Register, or that no relevant entry was located. Certificates are admissible in legal proceedings. Clause 23 states that the Registrar must maintain a publicly available policy on access to the Relationships Register. This policy is to state why access to the information in the Register is to be given or denied under Division 4. Clause 24 allows the Registrar to grant access to the Relationships Register or to provide information extracted from the Register. Access or information may be provided to a person or organisation that has an adequate reason for wanting the access or information. In deciding whether a person or organisation has an adequate reason for wanting the access or information, the Registrar must have regard to the nature of the applicant's interest, the sensitivity of the information, the use to be made of the information and other relevant factors. In making the decision about the access or information, the Registrar must, as far as practicable, protect the privacy of persons to whom the entries in the Register relate, as well as any other persons named in those entries. Clause 25 enables the Registrar to remit the whole or part of a fee payable under Chapter 2 of the Bill. 6

 


 

Division 5--Additional information and services Clause 26 allows the Registrar to collect information, other than registrable information, relating to registered relationships and to keep separate records of that information. As with the Relationships Register, the Registrar must, as far as practicable, protect the privacy of persons to whom these records relate, as well as any other persons named in these records. Clause 27 allows the Registrar to provide additional services in connection with the provision of services relating to the registration of a registrable relationship. This includes providing information from the Relationships Register, or from other records, in the form of a decorative certificate. The Registrar may charge a fee for the additional services. PART 2.4--GENERAL POWER OF REVIEW Clause 28 allows a person whose interests are affected by a decision of the Registrar under the Bill to apply to the Victorian Civil and Administrative Tribunal for review of the decision. In accordance with section 51 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal will have all the functions of the Registrar when exercising its review jurisdiction in respect of a decision, and may affirm or vary the decision, make its own decision or return the matter to the Registrar for re-consideration. PART 2.5--GENERAL Clause 29 provides that it is an offence to knowingly make a false or misleading representation in an application or document under Chapter 2 of the Bill. Clause 30 provides that it is an offence to access or interfere with the Relationships Register without proper authority. Clause 31 provides that it is an offence to forge or falsify a certificate or other document under Chapter 2 of the Bill. It is noted that is also an offence under section 55 of the Births, Deaths and Marriages Registration Act 1996 to forge the Registrar's signature or seal. Clause 32 requires the Registrar to provide a report to the Minister of the number of registrable relationships registered during a financial year, and the number of registrations revoked in that year. 7

 


 

Clause 33 gives the Registrar the power to require and to take statutory declarations for the purposes of Chapter 2 of the Bill. For example, the Registrar may seek information in the form of a statutory declaration when conducting an inquiry under clause 18 of the Bill. CHAPTER 3--RELATIONSHIP AGREEMENTS, PROPERTY AND MAINTENANCE PART 3.1--PRELIMINARY Clause 34 sets out the purpose of Chapter 3 of the Bill. The purpose of the Chapter is to provide for the effect of relationship agreements made between domestic partners, the adjustment of interests in property between domestic partners and the rights of domestic partners to maintenance. The provisions in this Chapter are not dependant on a domestic relationship being registered under Chapter 2 of the Bill. PART 3.2--RELATIONSHIP AGREEMENTS Clause 35 sets out the definitions that apply in Part 3.2, which relates to relationship agreements made between domestic partners. In this Part, a domestic partner of a person means a person with whom the person is or has been in a domestic relationship, or a person with whom the person is contemplating entering into a domestic relationship. A domestic relationship covers persons in a domestic relationship as this is currently defined across Victorian legislation, as well as persons in a relationship that has been registered under Chapter 2 of the Bill. Where a domestic relationship is not registered, all of the circumstances of the relationship are to be taken into account in determining whether a domestic relationship exists or has existed. Clause 35(2) lists a number of circumstances that may be relevant in a particular case, including the degree of mutual commitment to a shared life and the duration of the relationship. The circumstances listed in clause 35(2) are also relevant in determining the existence of a domestic relationship, where it is not registered, for the purposes of other Acts. 8

 


 

A relationship agreement is an agreement that deals primarily with financial and property matters between domestic partners and can be made in contemplation of entering into a relationship, at any time during the relationship, in contemplation of the relationship ending or after it has ended. Clause 36 provides that a relationship agreement is to be dealt with according to the law of contract. Clause 37 provides that a court may vary or set aside a relationship agreement where circumstances have changed and it would be unfair to enforce the agreement. A court can also vary or set aside an agreement if it has been made as a result of fraud or duress or for any other reason that would allow a contract to be varied or set aside. Clause 38 sets out what the effect will be on certain provisions of a relationship agreement when one or both of the domestic partners dies. A provision in a relationship agreement for periodic maintenance can only be enforced against the estate of the paying domestic partner if the agreement specifically provides for this to occur. No right to maintenance can survive the death of both partners. However, recovery of arrears of payment can be pursued against an estate in any case. Provisions in an agreement relating to property and lump sum payments will usually be enforceable on behalf of, or against, the estate of the deceased domestic partner. PART 3.3--PROPERTY AND MAINTENANCE Division 1--Preliminary Clause 39 sets out the definitions that apply in Part 3.3, which relates to the adjustment of interests in property between domestic partners and the rights of domestic partners to maintenance. In this Part, a domestic partner of a person means a person with whom the person is or has been in a domestic relationship. A domestic relationship covers persons in a domestic relationship as the term was defined in Part IX of the Property Law Act 1958. This means a relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis. The definition also covers a domestic relationship that has been registered under Chapter 2 of the Bill. 9

 


 

Where a domestic relationship is not registered, all of the circumstances of the relationship are to be taken into account in determining whether a domestic relationship exists or has existed. These circumstances include those listed in clause 35(2) of the Bill. Clause 40 empowers a court in proceedings between domestic partners with respect to property to declare existing title or rights partners have in the property and to make orders giving effect to the declaration. Division 2--Application for orders under this Part Clause 41 provides that a domestic partner can apply to a court for either an order for the adjustment of property interests or for maintenance, or both. Clause 42 sets out residential and other prerequisites for making an order for the adjustment of property interests or for maintenance. These prerequisites do not apply in the case of a domestic relationship that has been registered under Chapter 2 of the Bill. Normally, a court cannot make an order for the adjustment of property interests or for maintenance unless the domestic partners have lived together in the relationship for a period of at least 2 years. An exception can be made where-- · there is a child of the domestic partners or a child accepted by the partners as one of their family unit; or · failure to make an order would result in serious injustice for the partner who applied for the order and that partner has made substantial contributions for which they would otherwise not be adequately compensated. Clause 43 provides that, if a domestic relationship has broken down, an application for an order for the adjustment of property interests, or for maintenance, must be made within 2 years of the domestic relationship ending. However, a court may grant leave to apply for an order outside this 2-year period if greater hardship would be caused to the partner applying if that leave were not granted compared with the hardship to the other partner caused by granting leave. Clause 44 provides that a court must, as far as practicable, make orders that will end the financial relationships between the domestic partners and avoid further proceedings between them. 10

 


 

Division 3--Adjustment of interests in property Clause 45 empowers a court to make an order for the adjustment of property interests that seems just and equitable having regard to a number of specified factors, including-- · the financial and non-financial contributions by each partner to acquiring, conserving or improving any property; · the financial and non-financial contributions to the financial resources of one or both of the partners; · the contributions made to the welfare of the other partner, or to the family unit constituted by the partners and a child of the partners or a child accepted by the partners as one of the family unit; · the nature and duration of the domestic relationship. Clause 46 allows a court to adjourn an application for an order for the adjustment of property interests where there is a likelihood of a significant change in the financial circumstances of either of the domestic partners. Clause 47 allows a court to adjourn an application for an order for the adjustment of property interests if certain proceedings relating to property are commenced in the Family Court of Australia before the court has made a final order. For example, this may occur where a partner in an unregistered domestic relationship was still legally married at the time of commencing the new relationship and the Family Court is dealing with property matters resulting from the dissolution of the pre-existing marriage. Clause 48 allows a court to defer the operation of an order for the adjustment of property interests if satisfied that one of the domestic partners is likely to become entitled to property that could form part of a property order. Clause 49 sets out the effect of the death of either domestic partner on an application for an order for the adjustment of property interests. Where this happens, the application may continue and an order may be made against or in favour of the deceased's estate. This does not apply to an application for maintenance. Clause 50 sets out the effect of the death of either domestic partner on an order for the adjustment of property interests. Once such an order has been made, it can be enforced by or against the estate of the deceased partner. 11

 


 

Division 4--Maintenance Clause 51 empowers a court to make an order for maintenance in favour of a domestic partner unable to support themselves because their earning capacity has been adversely affected by the domestic relationship, or any other reason arising from the relationship. The matters to be considered by the court are listed. They include the financial resources of each partner, their financial needs and obligations and any payments provided for the maintenance of a child of the partners or a child accepted by the partners as one of the family unit. An application for maintenance abates if either partner dies before it is determined. Clause 52 allows a court to make an interim order for maintenance where the applicant is in immediate financial need. Clause 53 prevents a person who has married or entered a new domestic relationship from making an application for maintenance in relation to an earlier domestic relationship that has ended. Clause 54 provides that an order for maintenance automatically ceases to have effect when either domestic partner dies or the partner receiving the maintenance marries or registers a relationship under Chapter 2 of the Bill. Clause 55 provides that maintenance arrears are still payable after an order has ceased to have effect. Clause 56 allows a court to review an order for periodic maintenance where the circumstances of either domestic partner have changed or there have been changes in the cost of living that would justify doing so. As a result, the court may discharge, suspend or revive the order, or vary the terms of the order. Clause 57 provides that generally only orders for periodic maintenance may be varied. However, other orders for maintenance may be varied or set aside under clause 62 of the Bill. Clause 62 allows a court to vary or set aside an order for the adjustment of property interests or maintenance if there has been a miscarriage of justice, it is impracticable for the order to be carried out or a person has failed to carry out their obligations under the order. 12

 


 

Division 5--General provisions for property adjustment and maintenance orders Clause 58 sets out what a court may do in exercising its powers under Part 3.3. Clause 59 provides for the effect of relationship agreements on orders for the adjustment of property interests or for maintenance. So long as certain requirements have been met, a court is not to make an order that is inconsistent with the arrangements made in a relationship agreement between domestic partners. The requirements are that an agreement must be in writing, signed by the partner against whom it is to be enforced, and that each partner took independent legal advice as to its effect before entering the agreement. Where a court is satisfied that there is a relationship agreement but that it does not meet the necessary requirements, the court may still have regard to the agreement when making an order. Even where the requirements are met, the court is not bound to give effect to the terms of an agreement where the partners have explicitly or impliedly revoked it, the agreement has otherwise ceased to have effect or the court varies or sets aside the agreement under clause 37 of the Bill. Clause 37 provides that a court may vary or set aside a relationship agreement where circumstances have changed and it would be unfair to enforce the agreement. A court can also vary or set aside an agreement if it has been made as a result of fraud or duress or for any other reason that would allow a contract to be varied or set aside. Clause 60 enables a court to order the execution of a deed or instrument where a person refuses or neglects to comply with a direction to do so. Clause 61 provides that, in urgent cases, a court may make certain orders to protect certain property or aid enforcement of a relevant order, in the absence of a party. Clause 62 allows a court to vary or set aside an order for the adjustment of property interests or for maintenance, or make a substitute order, if there has been a miscarriage or justice, it is impracticable for the order to be carried out, or a person has failed to carry out their obligations under the order. 13

 


 

Clause 63 gives the court a power to prevent actions that would defeat the purposes of an order for the adjustment of property interests or for maintenance that has been, or is going to be, made. An example would be preventing the sale to a third party of a property that was to be the subject of an order for the adjustment of property interests. Clause 64 requires the court, in exercising its powers under Part 3.3, to have regard to the interests of and to protect third parties. Where a third party has acted in good faith, they should not be disadvantaged by an action of the court. Division 6--Jurisdiction and enforcement Clause 65 provides that a person may apply to the Supreme Court, the County Court or the Magistrates' Court for an order for the adjustment of property interests or for maintenance under Part 3.3. Clause 66 specifies circumstances for the transfer of proceedings to another court. Where proceedings are instituted in a court with respect to an interest in property of a value in excess of the court's jurisdictional limit, the court must transfer the proceedings to another court where the value is within the jurisdictional limit, unless the parties to the proceedings agree for the proceedings to remain in the first court. Clause 67 allows a court to transfer proceedings to another court where this is in the interests of justice. Clause 68 enables a court to suspend or dismiss proceedings under Part 3.3 if other proceedings under the Part, or in relation to the same person, are pending in another court. Clause 69 requires the courts having jurisdiction under Part 3.3 to act in aid of each other. Clause 70 deals with the enforcement of orders and injunctions granted under this Part. CHAPTER 4--GENERAL AND TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS PART 4.1--GENERAL Clause 71 gives power to make regulations. 14

 


 

PART 4.2--REPEALS, CONSEQUENTIAL AMENDMENTS AND TRANSITIONALS Clause 72 provides for the repeal of Part IX of the Property Law Act 1958. Clause 73 provides that the Acts specified in Schedule 1 to the Bill are to be consequentially amended as set out in that Schedule. Clause 73 also provides for the automatic repeal of the clause and Schedule 1 on 1 December 2009. The repeal of the clause and Schedule 1 does not affect the continuing operation of the amendments made by Schedule 1 (see section 15(1) of the Interpretation of Legislation Act 1984). Clause 74 sets out transitional provisions as a result of the repeal of Part IX of the Property Law Act 1958. Any right or entitlement that a domestic partner had or was entitled to under Part IX of the Property Law Act 1958 prior to the commencement of the Bill is taken to be a right or entitlement that that person has or is entitled to under the Bill. Where, before the commencement of the Bill, an order was made under Part IX of the Property Law Act 1958, the transfer of Part IX to the Bill does not affect the validity of the order. Where, before the commencement of the Bill, an application was made under Part IX of the Property Law Act 1958 for an order for the adjustment of property interests but the application has not been determined at the time of the commencement of the Bill, the application must be dealt with as if Part IX of the Property Law Act 1958 continued to apply in respect of the matter. Clause 75 provides for interim fees associated with the Relationships Register. The fees are taken to be the prescribed fees until regulations are made prescribing fees for the purposes of the Bill. SCHEDULE 1--CONSEQUENTIAL AMENDMENTS TO OTHER ACTS Schedule 1 sets out those Acts that will be amended pursuant to clause 73. The Acts listed in Schedule 1 currently make provision for either a domestic partner or a domestic relationship. Schedule 1 amends these definitions in order to make provision for partners in domestic relationships that are registered under Chapter 2 of the Bill. Where a partner is not in a registered relationship, the current definition of domestic partner in the Act will continue to apply. 15

 


 

For those Acts that currently define a domestic partner of a person to mean a person to whom the person is not married but with whom they are living as a couple on a genuine domestic basis, the consequential amendments will mean that a couple does not necessarily have to be living together for their relationship to be registered. But if not registered, this will still be a requirement in order to access rights and obligations under those Acts. Where those Acts in Schedule 1 use the term partner, the consequential amendments will mean that this term incorporates a spouse, a registered domestic partner and an unregistered domestic partner. Where, for the purposes of the Acts in Schedule 1, a domestic relationship is not registered, all of the circumstances of the relationship are to be taken into account in determining whether a domestic relationship exists or has existed. Clause 35(2) of the Bill lists a number of circumstances that may be relevant in a particular case, including the degree of mutual commitment to a shared life and the duration of the relationship. In addition, the following Acts are amended by Schedule 1 as set out below: Item 2 Administration and Probate Act 1958 Items 2.1 and 2.2 amend section 3 of the Administration and Probate Act 1958. In section 3(1), the definition of a domestic partner of a person who dies is amended to also include a partner with whom the person was in a domestic relationship registered under Chapter 2 of the Bill at the time of the person's death. Where the person was not in registered relationship, the person's domestic partner continues to mean a person who, although not married to the person, was living with them at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and either-- · had lived with the person in that manner continuously for a period of at least 2 years immediately before the person's death; or · is the parent of a child of the person, being a child under 18 years of age at the time of the person's death. The circumstances that may be taken into account in determining whether persons were domestic partners of each other (where the relationship has not been registered) are set out in clause 35(2) of the Bill. 16

 


 

Item 2.3 amends section 51A, which provides for the distribution of an intestate's residuary estate where the intestate leaves more than one partner. The section will now make provision for a partner in a relationship registered under Chapter 2 of the Bill. As the Bill provides that a person cannot register a domestic relationship if they are already married, an intestate cannot leave both a spouse and a registered domestic partner. The distribution table in section 51A therefore deals with the situation where an intestate leaves either a spouse or registered domestic partner and an unregistered domestic partner with whom the intestate was living at the time of death. A partner's entitlement to a share of the residuary estate is determined by the period of time during which the unregistered domestic partner lived with the intestate. For the unregistered domestic partner, there continues to be a requirement that they had lived with the intestate continuously for at least 2 years immediately before the intestate's death, unless they are the parent of a child of the intestate, being a child under 18 at the time of the intestate's death. Item 4 Births, Deaths and Marriages Registration Act 1996 Item 4 makes a number of minor consequential amendments to the Births, Deaths and Marriages Registration Act 1996 to make reference to the Bill. This includes amending section 6 of the Births, Deaths and Marriages Registration Act 1996 to provide that the Registrar's general functions include-- · establishing and maintaining the Relationships Register; · administering the registration system established by the Bill and ensuring that it operates efficiently, effectively and economically; · ensuring that the Bill is administered in the way best calculated to achieve its objects. Item 17 Duties Act 2000 Item 17 amends section 3 of the Duties Act 2000. In section 3(1), the definition of domestic relationship is amended to include a domestic relationship registered under Chapter 2 of the Bill. 17

 


 

Where a relationship is not registered, a domestic relationship continues to mean a relationship between 2 persons who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender). The circumstances that may be taken into account in determining whether persons are in a domestic relationship (where the relationship has not been registered) are set out in clause 35(2) of the Bill. By amending the definition of domestic relationship, a person in a registered relationship also falls within the meaning of and is subject to the provisions concerning an associate, associated person, relative, partner or domestic partner in the Act. Item 43 Parliamentary Salaries and Superannuation Act 1968 Items 43.1 and 43.2 amend section 10 of the Parliamentary Salaries and Superannuation Act 1968. In section 10(1), the definition of domestic partner of a person is amended to include a partner who is, or was at the time of the person's death, in a domestic relationship registered under Chapter 2 of the Bill. Where a partner is not in a registered relationship, the person's domestic partner continues to mean a person to whom the person is not married but with whom, in the opinion of the Board, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender). The circumstances that may be taken into account in determining whether persons were domestic partners of each other (where the relationship has not been registered) are set out in clause 35(2) of the Bill. Items 43.3, 43.4, 43.5 and 43.6 amend section 21A, which applies the Parliamentary Contributory Superannuation Act 1948 of the Commonwealth, subject to modifications, as Victorian law. Item 43.3 amends section 21A(5)(d) to provide that a reference in section 19AA of the Commonwealth Act to a marital relationship is to be construed as including a reference to a domestic relationship or a relationship registered under Chapter 2 of the Bill. Item 43.4 amends section 21A(9) to provide that the circumstances that may be taken into account in determining whether persons were in a domestic relationship (where the relationship was not registered) are set out in clause 35(2) of the Bill. 18

 


 

Item 43.5 inserts a new subsection to provide that subsections (6), (7), (8) and (9) do not apply to a person who was in a registered relationship with the deceased at the time of death. These subsections will continue to apply for the purposes of determining the application of the Division in cases where domestic partners were not in a registered relationship. Item 43.6 amends section 21A(10) to provide that a reference in section 21A to a person's former domestic partner means a person with whom they previously had a domestic relationship or registered relationship. 19