This chapter looks at the law related to same-sex and de facto families. There have been a number of major changes to the Victorian and Commonwealth law over the past decade. In 2002 a raft of Victorian statutes were amended by the Statute Law Amendment (Relationships) Act 2001 (Vic) ("SLAR Act") and the Statute Law Further Amendment (Relationships) Act 2001 (Vic) ("SLFAR Act").
While it is still in common usage, the legal term "de facto relationship", previously used to distinguish unmarried heterosexual couples from married couples, was replaced by the legal term "domestic relationship" (see below), to include couples in a relationship regardless of gender. The main purpose was to remove discrimination and to bring the status of same-sex relationships more in line with those of unmarried heterosexual relationships.
In 2008 and 2009 a vast number of Commonwealth laws were amended to recognise same-sex relationships and parenting and to remove existing discrimination (discussed further below). The Acts Interpretation Act 1901 (Cth) introduces a new definition of "de facto partner" that relies on the relationship status irrespective of gender. There are two circumstances that satisfy the Commonwealth definition of de facto relationship:
- if the relationship is registered under a prescribed state or territory law (e.g. the Australian Capital Territory, Victoria and Tasmania registration schemes); or
- the relationship is characterised by a set of factors such as duration, sex, common residence, care and support of children and financial interdependence, etc.
At a state level, in December 2008 Victoria passed the Assisted Reproductive Treatment Act 2008 (Vic) ("ARTA") to remove discrimination in relation to accessing in-vitro fertilisation (IVF) and artificial insemination (AI) services and to secure the legal status of children with same-sex parents. In particular, the ARTA replaced the Infertility Act 1995 (Vic) and amended both the Status of Children Act 1974 (Vic) ("SoCA") and Births, Deaths and Marriages Registration Act 1996 (Vic) ("BDMR Act").
The Victorian SLAR Act (and the subsequent SLFAR Act) changed a range of state Acts to introduce the legal concept of "domestic relationship". The objects of the Act are:
- to recognise the rights and obligations of partners in domestic relationships where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner; and
- to prevent discrimination under legislation specified in the Schedules by ensuring that all couples irrespective of gender have the same rights and obligations while at the same time recognising the importance of a commitment to a long-term relationship and the security of children.
Approximately 55 Acts were amended, mainly concerning property, inheritance, stamp duty, compensation schemes, superannuation, health, guardianship, employment, criminal and consumer laws. All amended statutes took effect by July 2002. The amendments introduced the legal concept of domestic relationship, defined either narrowly or broadly depending on the particular obligation or benefit listed in the SLAR Act Schedules 1 to 7.
The narrow or principal definition of domestic relationship is "a person to whom the person is not married but with whom the person is living as a couple in a genuine domestic basis irrespective of gender".
On 1 December 2008 the Relationships Act 2008 (Vic) ("Relationships Act") came into effect. The purpose of the Act is to:
- establish a Relationship Register that recognises same-sex domestic relationships;
- provide for relationship agreements;
- provide for property adjustments following relationship breakdown and provide the right of domestic partners to maintenance;
- to repeal Part 9 of the Property Law Act 1958 (Vic) and amend the definition of "domestic relationship" in other Acts.
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 Family Law Act 1975 (Cth) ("FLA") (discussed further below).
Part 2.3 of the Act establishes a Relationship Register for domestic relationships that will be maintained by the Registry of Births, Death And Marriages.
Section 5 of the Relationships Act defines a "registrable relationship" as a relationship between an adult couple, who are not married to each other, 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, irrespective of their genders and whether or not they are living under the same roof, but does not include domestic care for fee or reward.
Note also that in circumstances where one or both of the partners have children, section 60EA of the FLA (as amended) now provides that the relationship of step-parent to the children is created immediately upon registration of the relationship, irrespective of whether the partners are of the same or opposite gender.
Section 39(1) defines a domestic relationship as either a registered relationship or an unmarried couple living together on a genuine domestic basis irrespective of gender. If the relationship is not registered, section 35(2) lists the relevant factors for courts to consider in determining whether a domestic relationship exists. They include:
- the degree of mutual commitment to a shared life;
- the duration of the relationship;
- the nature and extent of common residence;
- whether or not a sexual relationship exists;
- the degree of financial inter-relationship;
- the ownership, use and acquisition of property;
- the care and support of children; and
- the reputation and public aspects of the relationship.
This principal definition applies to property and other financial schemes, including property settlements, compensation and superannuation schemes.
The broader definition introduced by the SLAR Act recognises relationships between people who do not necessarily live together but are nonetheless committed to their relationship and to a shared financial and domestic life. Schedules 4, 5, 6 and 7 of the SLAR Act list the legislation into which this definition is inserted, including health related, criminal, consumer and guardianship legislation. The definition expressly excludes paid personal carers and care on behalf of charitable, benevolent or government organisations.
For further information, contact:
The Assisted Reproductive Treatment Act 2008 (Vic) ("ARTA") was passed on 4 December 2008 and was fully operational by 1 January 2010. The ARTA corrects major discriminations against same-sex parents and provides legal security for children of same-sex parents, including the following:
- a woman and her partner, if any, and irrespective of gender, can access assisted reproductive technology (ART) procedures if the woman is "unlikely to become pregnant" without that assistance;
- the Status of Children Act 1974 (Vic) is amended to provide that the female partner of the birth mother is presumed, for all purposes, to be the legal parent of any child born as a result of the pregnancy if she was the partner at the time of the procedure and she consented to the procedure;
- the man who produced the semen is presumed for all purposes not to be the father, whether or not he is known to either woman;
- these presumptions are irrebuttable (not open to question) and prevail over any conflict;
- the Act provides for the registration of the non-birth mother as the parent on the child's birth certificate;
- the ART provider must provide the donor's name to the Registrar of Births, Deaths and Marriages, which can then be disclosed to the child, the parents, the child's descendants or the donor by application to the Registrar;
- the ART Act opened up 'altruistic' (unpaid) surrogacy in Victoria as an option for gay men to become parents, and allowed for recognition of parents (including both partners in a gay male couple) of children conceived this way (for more information visit Rainbow Families at www.rainbowfamilies.com.au).
- ART providers may carry out procedures under surrogacy arrangements if approved by the Patient Review Panel established by the Act;
- the commissioning parents of a child born under a surrogacy arrangement can apply for a substitute parenting order, which irrebuttably presumes the parents will be named as the child's legal parents where both parents consented to the arrangements.
Application forms and information on the changes can be obtained from the Births, Deaths and Marriages Registry at www.bdm.vic.gov.au.
Discrimination on the grounds of "gender identity", "lawful sexual activity" and "marital status" is prohibited under Victorian law. As a result of the SLAR Act "marital status" now includes being a "domestic partner" for the purposes of the Equal Opportunity Act 1995 (Vic) ("EO Act"). The definition of "relative" also extends to certain family members of a person's domestic partner.
Legislation that excludes or is plainly limited to certain classes of persons or relationships is not a kind of discrimination that can be challenged under the EO Act. On the other hand, if, for example, a child care centre were to refuse to provide a service to an unmarried individual or persons in a domestic relationship, the EO Act may be of assistance.
Complaints about discriminatory state legislation can, however, be successful where it can be shown that there has been a contravention of a Commonwealth anti-discrimination law: see Jenni Millbank (1997) "Every Sperm is Sacred?", Alternative Law Journal, 22, 3, pp. 126–9.
In 2008 the Australian Government passed the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) 2008 (Cth) and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (Cth).
A total of 84 Commonwealth Acts were amended to remove differential treatment of same-sex couples and their children, including in the areas of tax, superannuation, PBS and Medicare safety nets, aged care, veteran's entitlements, immigration, evidence, child support, social security, workers compensation and employment entitlements and family law.
The bulk of reforms introduced by the Acts took effect on 1 July 2009.
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth): This Act amends the FLA with two major reforms.
Firstly, they bring de facto (redefined to include same-sex couples) property matters within the jurisdiction of the Family Court. Couples who separated prior to 2 March 2009 can opt into the Family Court jurisdiction by consent. Amongst other advantages, this now enables same-sex and heterosexual de facto couples to benefit from the superannuation splitting provisions of the FLA and to have the care and control of a child of the relationship taken into account in property settlements and maintenance (ss.60 EA, 60HA, 60H(1), 90RB & 90SF of the FLA).
Secondly, the amended FLA 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 (s.60H(1)).
However, note the Federal Government has made it clear 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. Doing so has no legal effect on the status of the relationship but it may remove a lot of practical difficulties, particularly for de facto couples, in such matters as hospital benefits, making contracts, obtaining a loan, etc., simply because there is likely to be less explaining to do. This may be done by applying to:
Information and forms may also be obtained and lodged via the Births, Deaths and Marriages online shop at the website listed above. For further information see: Chapter 5*6 Changing Your Name.
The surname of children of a de facto relationship is also discussed in Chapter 5*6 Changing Your Name. Note, however, that one parent cannot change the legal first name or surname of a child without either the agreement of the other parent or a court order. See: "Registering children conceived with reproductive assistance", below, for information on registration of children born to same-sex parents.
SAME-SEX AND DE FACTO FAMILIES :: Last updated: Thu Jul 1st 2010