Presumption and the law: a critical evaluation of presumption in the Australian legal regimes governing the financial consequences on cessation of non-marital relationships through death or dissolution

People living in relationships outside of marriage are a significant and expanding demographic. Unlike many other jurisdictions in the Western world, Australia has for some time recognised certain non-marital cohabiting relationships on a presumptive basis for a number of different purposes. A relationship recognition regime that imposes relational consequences on those who have not consented is, howerever, a significant risk to individual liberty. This thesis undertakes a normative jurisprudential analysis, critically evaluating Australia's presumptive approach to relationship recognition with respect to the financial consequences that flow as a result of that determination in the areas of family property law and family provision law. To establish the legal and social context the thesis considers the background of the existing legislative regimes and undertakes a detailed review and synthesis of current social science literature providing an up-to-date insight into the nature of marital and non-marital relationships. Then, utilising the writings of liberal theorists, including John Stuart Mill, John Rawls, John Eekelaar, HLA Hart and Robert Goodin, the thesis provides a liberal justification for the intrusion of the law into the financial circumstances of personal relationships when a relationship ends through death or dissolution. The conceptual frameworks developed provide a basis on which an appropriate balance can be struck between. Supporting the state’s role in protecting against injustice and inequity in the context of personal relationships, whilst still providing an adequate level of respect for and protection of individual liberty. Drawing on the results from the social science analysis and utilising the conceptual frameworks developed, the thesis undertakes a detailed critical analysis of the existing legislative regimes as they are constructed and applied, including the opt out mechanisms. It concludes that while, on the whole, the purposes of the legislative regimes, including the aim of extending the regimes beyond marital relationships, are legitimate, the methods by which those extensions have been made are problematic. In particular, it finds the definitions of non marital relationships are significantly over inclusive when the social justice concerns supporting those regimes are considered, and thus interferes with individual liberty to an unjustifiable extent. It is therefore suggested that the current presumptive definitions should be amended to accord better with the social justice concerns supporting the family property and family provision legislative regimes and to that extent recommendations are made as to how this may be achieved.