Married Persons (Separate Legal Status) Bill

Second Reading

The Married Persons (Separate Legal Status) Bill 2019 is part of the reforms that the government is undertaking to ensure that South Australian law is fully compatible with the availability of same-sex marriage. It is complementary to the main bill that undertakes this reform, namely, the Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Bill 2019.

The Married Persons (Separate Legal Status) Bill 2019 is required due to the numerous outdated provisions that married persons found in the Law of Property Act 1936. The Law of Property Act has many sections that state what married women can do: hold property, for example, or effect a policy of insurance upon her own life. It also has laws about married men; for example, it provides that a man is not liable for torts or debts of his wife. These laws might seem unnecessary and old-fashioned now but at the time they were enacted they were vitally important.

At common law, in the late 19th century married women did not have an independent legal identity. They were considered one legal person with their husband and the husband was in control. This doctrine significantly impeded the legal rights of married women. For example, because a married woman had no legal identity, she could not hold property in her own right or have a legal action against her husband. It also operated to make married men legally responsible for their wife's actions.

Statutes like the Law of Property Act and its predecessors used legislation to override these common law rules. As groundbreaking as the laws were at that time, the language used has become outdated and inappropriate to the modern law of marriage, particularly following the legalisation of same-sex marriage. The laws require updating to fit the egalitarian, gender-neutral form of marriage in Australia today.

The Married Persons (Separate Legal Status) Bill 2019 will create a standalone act that expresses in broad, gender-neutral terms that married persons are separate legally and equal to non-married persons as concerns their legal capacity. This ensures that the old common law doctrine of unity of spouses continues to be inapplicable. The bill then repeals the outdated portions of the Law of Property Act. The bill is not intended to alter the law of marriage as currently found in the Law of Property Act; rather, it will consolidate and modernise the provisions in standalone act related to married persons' legal status.

This approach is not unique to South Australia. Two other jurisdictions already have similar Acts. New South Wales has the Married Persons (Equality of Status) Act 1996 (NSW) and the Northern Territory has the Married Persons (Equality of Status) Act 1989 (NT). I therefore commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Separate legal status of married persons

3—Married person has legal capacity as if not married

This clause provides that married persons have separate legal status to one another in all circumstances.

4—Married person entitled to criminal and civil redress in respect of property

This clause provides that a married person may bring an action against their spouse in relation to the person's property notwithstanding the fact that they are married.

5—Married person has no authority to act as agent for spouse

This clause provides that a married person is not permitted to act as an agent for their spouse, unless another law or agreement provides otherwise.

6—Married person not liable for debts of spouse incurred before marriage

This clause provides that a married person is not liable for a debt of their spouse that was incurred before they entered into their marriage.

7—Housekeeping payments and allowances taken to be joint property

This clause provides that where a married person provides money to their spouse for the purpose of paying joint household expenses, anything purchased with that money, or any money not spent, will be taken to be the joint property of the person and the person's spouse (unless an agreement between the person and their spouse states otherwise).

Part 3—Miscellaneous

8—Regulations

This clause allows the Governor to make regulations in relation to the Act.

Schedule 1—Related amendments

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Law of Property Act 1936

2—Amendment of section 40—Conveyances by a person to self etc

This clause gender neutralises language in relation to conveying property to oneself jointly with another person.

3—Amendment of section 42—Covenants for title

Section 42(3) prescribes a concept relating to a wife being deemed to convey property on the direction of the husband where both the wife and the husband convey and are expressed to convey as beneficial owners. This clause removes subsection (3).

4—Amendment of section 82—Request by infant or person under disability

Section 82 provides that another person may be authorised to act on behalf of a married woman, infant, person of unsound mind or person with any other disability in certain circumstances, and in effect equates married women with persons with impaired decision making abilities. This clause removes the reference to married women in this section.

5—Repeal of sections 92 to 99

Sections 92 to 99 of the Act specify certain provisions in relation to married women that are no longer required in light of this measure, such as prescribing that, in relation to legal status in respect of property, a married woman is to be treated as though she were not married.

6—Repeal of sections 101 to 107

Sections 101 to 107 of the Act specify certain provisions in relation to married women that are no longer required in light of this measure, such as a married woman having the same civil and criminal redress in relation to property as if she were not married.

7—Amendment of section 108—Interpretation of terms

This clause removes outdated references to married women and otherwise gender neutralises terminology in relation to executors and administrators.

8—Repeal of section 109

This section deletes section 109 of the Act, which relates to wills of married women.

9—Repeal of section 111

This section deletes section 111 of the Act, which relates to acquisitions and dispositions of trust estates by married women.

Debate adjourned on motion of Mr Brown.