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Family & Relationship Law 11 October 2017

Same sex relationships in the eyes of the law

As Australians vote on whether same sex couples should be given the right to marry, it is time to consider the status of same sex couples in the context of the law.

Sadly, the debate surrounding whether same sex couples should have the same right to marry as heterosexual couples has elicited vitriol from both sides of the debate much of which is based on misinformation as to the impact the right to marry will have on families  and society in general.

The Commonwealth Marriage Act 1961 (“Marriage Act”) defines marriage to mean the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.  Accordingly, to enable same sex couples to marry, Parliament would be required to pass legislation to amend the Marriage Act to include that marriage not only means marriage between heterosexual couples but also includes the union of same sex couples.  Any amendment to the Marriage Act will be determined not only on the vote of the Australian people but also on the passage of legislation through both houses of Parliament.

It is interesting to note that the definition of marriage in the Marriage Act was inserted by the Howard government as recently as 2004 on the basis that the inclusion of marriage between a man and woman reflected how the vast majority of Australians viewed marriage.  Prior to this amendment the Marriage Act did not actually contain a definition of marriage.  The Government of the time maintained that including the definition of marriage would remove any lingering concerns that people may have that the legal definition of marriage may become eroded over time.

At the time of the 2004 amendment to the Marriage Act there were reforms legalising same sex marriage in a number of overseas jurisdictions.

While the Victorian Relationships Act which was passed in 2008 allowed same sex couples to register their relationship, irrespective of gender and whether they were living together, registering a same sex relationship is not necessarily a simple process.  Couples wishing to register their relationship are expected to provide evidence as to the existence of their relationship including their living arrangements, whether a sexual relationship existed, whether they mingled their finances and how they owned property.  Other factors taken into account include whether the parties are committed to a shared life together and how family and friends view their relationship.  Once a relationship is registered it is conclusive proof that a relationship exists.

Once same sex couples prove the existence of their relationship, whether by registration or by satisfying a number of criteria, they have the ability to divide the property of their relationship, including superannuation entitlements, under the terms of the Family & Relationship Law Act 1975 (Commonwealth) as do married couples.

One difference between married couples and defacto couples dividing property is that a defacto relationship must have ended before parties can apply to divide their property but married couples do not need to have divorced to make such application.  Another difference is that defacto partners have two years after their relationship ends to make an application for property division whereas married couples have until one year after a divorce order is made.

Same sex couples are able to enter into Financial Agreements to divide their property or to determine how their property should be treated prior to entering into a relationship.

Married couples and parties in a defacto relationship, including same sex couples are able to access IVF.  In 2008, new provisions were introduced into the Family & Relationship Law Act to extend legal parentage to lesbian co – mothers, that is the mother who did not give birth to a child.  The ability of same sex couples to be permitted to marry will not affect their rights to access IVF.

With respect to IVF, the difference between married and same sex couples is that if  married couples use IVF, both spouses are automatically legal parents whereas if couples are in a  defacto relationship or a same sex relationship, their child’s parentage depends on whether a de facto relationship is proven to exist.

Same sex couples are eligible to commission a surrogate as are married and defacto couples.  Surrogacy is also available if the intending parent is a single male or a male in a same sex male relationship.

Despite the hype and vitriol around the yes and no campaigns, in summary, whether the Marriage Act is amended to provide for the marriage of same sex couples, little will change in so many aspects of family life and society in general.

If you require advice or further information in relation to any of the matters discussed in this article, please contact our Family & Relationship Law team on 03 5273 5273.

Anne O’Loughlin.
Anne O’Loughlin Managing Principal Family & Relationship Law View profile
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