Blog post by Sam Lehman
The status of same-sex marriage and relationships has been a topical one in recent years, but in Australia the former still has no legal grounding. Indeed, ‘marriage’ is strictly defined by Commonwealth legislation as a voluntary union for life between a man and woman, to the exclusion of all others. Quite clearly, the legal definition of marriage currently excludes same-sex couples.
Where does that leave same-sex relationships then?
Broadly, marriage laws are exclusively within the power of the Commonwealth, so the various states and territories are unable to introduce their own marriage laws. Same-sex relationships do however fall under the definition of de facto relationships in the Family Law Act 1975.
The difference between a marriage and de-facto relationship is that marriage is a formal legal relationship created by the relevant man and woman taking part in an official, recognised process that establishes the relationship. De facto relationships by comparison do not involve the couple taking part in this process. Simply, the de facto relationship is a relationship as a matter of fact where the individual parties to the relationship treat each other as genuine domestic partners.
Same-sex couples are included in this definition and, due to Australia’s strong equality laws, have many of the same benefits as those who are married.
Domestic Partnerships in South Australia
In South Australia, the Family Relationships Act 1975 recognises same-sex relationships as ‘domestic partnerships’. Same-sex partners must be together for three years or for three years over a four-year period to be automatically recognised as domestic partners by the legislation.
In certain circumstances, it may be necessary for a partner to seek a declaration from the courts that a domestic relationship exists or existed at a specified date. This can be found even if the relationship was less than three years in length, and the test in that instance is whether it is in the interests of justice that such a declaration be made.
These declarations can be required for legal purposes, including but not limited to when a partner dies without leaving a will, when a partner wants to challenge the will left by their deceased partner, when there is a death or personal injury compensation claim in relation to a partner and when a medical decision needs to be made on behalf of a partner.
Under South Australian legislation however, same-sex partners are unable to adopt children and fertile same-sex partners cannot access reproductive technology (artificial insemination).
Registering Relationships & Civil Unions
Furthermore, the states of New South Wales, Victoria, Queensland and Tasmania allow registration of same-sex domestic relationships. This allows same-sex couples to make a formal record of their relationship, and assists in proving the relationship for other purposes. This differs from the concept of a civil union, which creates a brand new legal status and was introduced in the Australian Capital Territory in 2012.
Civil unions are similar to marriages insofar as they are treated the same as marriage aside from the fact that they allow same-sex union – terms such as ‘husband’ and ‘wife’ are strictly associated with the institution of marriage only.