Same sex marriage and family law

by Peter Magee on July 12, 2011

Peter MageeRecently, the issue of same sex marriage has received increased publicity.  A large rally took place in Sydney for equal marriage rights on Saturday 21 May.  In support of the rally “Australian Marriage Equality”, a body that supports equal marriage rights, published a fairly extensive brochure on the topic.

The brochure states that there is increased support for gay and lesbian marriage with 62% of Australians saying they support gay marriage as compared with 36% in 2004.  It also lists among the countries that allow same sex marriages, the Netherlands, Canada, Spain, South Africa and several US states.

In Australia, the 2004 Marriage Act, enacted under the Howard government, not only prohibits same sex marriage, but also denies same sex couples married overseas the right to have this marriage recognised in Australia. By comparison, other countries, such as Israel and Mexico, recognise overseas same sex marriages, even though the ceremonies may not be performed there.

An article in the Star Observer published on 20 April 2011 “State Marriage Possible” argues that there may actually be a loophole in the Marriage Act.  The Marriage Act legislates only in the area of a marriage between a man and a woman.  ACT Chief Minister John Stanhope says that this means that arguably the States or Territories could legislate for relationships that are not between a man and a woman, ie. gay and lesbian relationships.

One view is that same sex couples are already given the same legal rights by recognition of their relationships as “de facto” rather than married. Similar to married couples, de facto couples can adopt in NSW, and can make a claim on their former partner’s estate.  Also when a de facto relationship ends, in order to determine how property is to be divided, the Court follows the same process it would for parties who have been married.

However the difference is, that it is more difficult to determine what is a de facto relationship, as opposed to ascertaining if a couple are married.  Under the Family Law Act, living together is only one of several criteria that the Court uses to determine if the couple is in a de facto relationship.  Other facts can include the duration of the relationship, if a sexual relationship exists, if there is any financial interdependence, if other friends and family considered the couple to be in a de facto relationship and also the “degree of mutual commitment to a shared life”.

The fact that same sex couples do not have access to marriage means they are denied the ability to clearly define their relationship in the same way as heterosexual couples.  This may be what the Australian Marriage Equality group mean when they say “in the absence of a marriage certificate, same sex partners can have problems proving they have legal entitlements”. Proof of being a de facto couple is more onerous than providing a marriage certificate.

However a person feels about the idea of gay and lesbian marriage, it does appear that internationally the trend is towards support for gay and lesbian marriage and it is probably inevitable that at some point it will be allowed in Australia.

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