SAME SEX & DE FACTO RELATIONSHIPS

The Relationships Act 2008 (Vic) came into effect in December 2008. This legislation allows people in same-sex relationships to:

Note: As a result of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) the Relationship Act applies only to relationship breakdowns from its commencement to 2 March 2009, after which date same-sex and heterosexual de facto property matters are dealt with under the FLA.

A relationship does not have to be registered to be recognised by the law. In the event of a dispute, the court would look at a number of factors to decide whether a domestic relationship exists, including:

Discrimination on the grounds of gender identity, lawful sexual activity and relationship status is prohibited under Victorian law.

In 2007, the Victorian Law Reform Commission (VLRC) made 130 recommendations for a less discriminatory regulation of assisted reproductive treatments. The State Government announced its intention to follow all of the VLRC’s recommendations, except in relation to adoption and the retraction of donor information amendments, and passed the Assisted Reproductive Treatment Bill in December 2008. This makes IVF and artificial insemination technology available to single women and lesbian couples. It also gives the parents of children born by surrogacy, and gay partners, legal parenting rights.

The Commonwealth Government has enacted the Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Act 2008 and Same-Sex Relationships (Equal Treatment Law superannuation) Act 2008. These Acts amend a total of 84 Commonwealth Acts to remove differential treatment of same-sex couples and their children in areas including taxation, superannuation, PBS and Medicare safety nets, aged care, veterans’ entitlements, child support,social security, workers’ compensation, employment entitlements and family law. Most of the reforms came into effect from 1 July 2009.

The Commonwealth Government has made it clear, however, that it will not remove the current discrimination in relation to marriage, nor will it permit same-sex couples to adopt children.

There is no legal barrier to adults choosing to have the same surname, regardless of whether they are in any type of relationship. However it may remove a lot of practical difficulties, particularly for opposite sex couples, in matters such as hospital benefits, making contracts or obtaining a loan.

A woman who becomes pregnant has choices. If she decides to have the child she is under no legal obligation to tell the man with whom she became pregnant. If she seeks financial assistance from Centrelink, she may be required to provide information about the father and may be refused assistance if there are not good reasons for her not seeking child support from the child's father.

In the case of married heterosexual couples the law says that where a donor is used to conceive the child, the husband is presumed to be the father and to have caused the pregnancy. In the case of an unmarried woman or a married woman inseminating without the consent of her husband, the law says that the donor has no rights and incurs no liabilities in relation to the child.

The Family Law Amendment Act 2008 (Cth) now conclusively presumes that the non-birth mother (“the intended parent”) of a child born through artificial conception procedures is the parent of the child.

All children who have a mother and a father (actual or presumed) are of equal status under the law, regardless of whether their parents were married or not. For the purposes of inheritance this applies to children whose fathers die without a will or where the will was made after 1 March 1975.

The Assisted Reproductive Treatment Bill 2008 (Vic) extends this legal equality to children born to same-sex parents. People in a domestic relationship with children or step-children they wish to benefit should obtain legal advice about making express provisions for inheritance in a will.

The FLA allows a parent, grandparent, child or any other person with an interest in the child's welfare to apply for a child maintenance order. In relation to financial support, children of same-sex parents have been considered by law to be a child of the relationship and maintenance or child support follows accordingly. The law in this area is still developing so you should seek legal advice.

Property law is one area where the treatment of same-sex relationships has been brought into line with heterosexual de facto relationships. The Federal Government has introduced an amendment to the Family Law Act which will enable heterosexual de facto couples and same-sex couples to benefit from superannuation splitting provisions under the Family Law Act They will also be able to have their property and children's matters dealt with in the Family Court in the same way as married couples. In making its decision about property, the court must take into account both financial and non-financial contributions made directly or indirectly, including any contributions made as a homemaker or parent; and any written agreement made between the partners.

For more information on this subject refer to The Law Handbook chapter 5.3