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Describe the contemporary issue relating to family law of the recognition of same-sex relationships, and evaluate the effectiveness of legal and non-legal responses to this issue. Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    4
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    2417

Same-Sex Relationships in NSW and Australia

Recognition of same sex relationship in Australia has experienced a dramatic increase for the past two decades where the same sex couples in most jurisdictions are generally provided with the same rights and obligations as de facto couples. More importantly, the extent of the recognition of same-sex relationships has continued to draw out much debate (Karina & Drabsch, 2).

Various major steps have been taken towards recognition of same-sex marriage in NSW and Australia as a whole since 1975. In the Anti-Discrimination Act 1977 (NSW), part 4C was inserted in 1982 and is concerned with discrimination of a person on the grounds of homosexuality (Anti-Discrimination (Amendment) Act 1982 (NSW)). The Act prohibits discriminations in various areas such as education, work, accommodation, registered clubs and provision of goods and services. In 1984, a report of De Facto Relationships was published by NSW Law Reform Commission. The commission recommended the amendment of the law in order to remove any inconsistencies between those in de facto relationship and married people where the courts were given the power to adjust de facto couples’ property interests. Thus, in 1984, the De Facto Relationships Act 1984 (NSW) was passed. In 1984, the gay and lesbian rights lobby recommended for extension of de facto relationship in order to include gay and lesbian relationships. In 1999, the government introduced a Bill for amending the De Facto Relationships Act 1984 in order to extend the rights and obligations to other domestic relationships. This led to passing of the Property (Relationships) Legislation Amendment Act 1999 (NSW) in June 1999 where the couples of the same-sex were include in the de facto relationships. The laws that were affected include family provision, property division, accident compensation, intestacy, stamp duty as well as making decision in illness and after death. This new law was driven by the The Bride Wore Pink, a document provided by the same-sex rights lobby groups (Millbank & Sant, 188).

Thus, the Property (Relationships) Legislation Amendment Act 1999 is a major reform on human rights that introduces sweeping changes to the rights and status of cohabiting couples of the same sex. Such act has a potential impact in every aspect of the lives of gays and lesbians. The Property (Relationships) Act 1984 amended more than 20 statutes in order to confer to the rights and responsibilities of the same sex relationships which included various areas such as inheritance, illness and incapacity, property as well as compensation (Millbank & Sant, 218).

In 2002, the Miscellaneous Acts Amendment (Relationships) Act 2002 led to the amendment of 20 laws in order to include same sex couples in de facto relationships. Such amendments were an exception for providing evidence against the spouse in employment benefits and in court. In 2005, the marriage bill on same sex was introduced in the parliament in order to provide marriage between adults of the same sex (Millbank, 5).

Thus, various Acts in Australia led to provision of same entitlements to the de facto couple and their families as opposite de facto couples as well as their families. In order to remove discrimination, the same sex reform package of the government was passed in 2008 through the parliament. This resulted in the removal of discrimination against de facto couples of the same sex and their families in various areas such as superannuation, taxation, family assistance, social security, aged care, Medicare safety net and pharmaceutical benefit scheme safety net, entitlements of veterans, citizenship, family law, immigration as well as child support (Australian Human Rights Commission). The successful way of removing discrimination against the couples of the same sex was to include them in the definitions that already exists in the opposite sex couples. This is what was achieved in the territorial laws as well as the state during the 1999 t0 2006 law reforms that took place in Australia. Legislation that was failed to include same sex couples was described in more detail leading to simultaneous amendment of a wide range of legislation that existed. The effect of such reforms led to access of territorial and state work related and financial entitlement in almost all circumstances (Karina & Drabsch, 27).

In addition, there is a higher degree of consistency in definitions used within between territories and states where de facto relationships as well as de facto partner are among the most commonly used terms in both territorial and state laws. As a result, the meaning of such terms is clearly understood. The courts have also developed case law about the determinations of borderline dating back to the early 1980s (Australian De Facto Relationships Cases, 9). The process of reform in territory and state gives a useful model in the reform of federal law where they ensured that the definitions of “significant, domestic and de facto” relationships that include same sex and opposite sex couples are alike instead of adding category of “interdependency” in order to cover couples of the same sex (Australian Human Rights Commission).

For instance, the amendments during the 1999 reforms in NSW defined the term de facto relationship as a relationship between two adults who live together as a couple, and who are not related by family or married to one another (Property Relationships Act 1984 (NSW), s 4(1).). As a result, the definition of spouse now includes a party to a de facto relationship meaning that a partner of the same sex will get the benefits that are entitled to a spouse even though the couple has no possibility of marrying or is married under federal law (Millbank, 11).

In 2000, the parliament amended superannuation legislation to make sure that same sex couples has an equal access. In 2002, there was an amendment of about 25 additional laws to ensure that same sex couples are included. The law reform commission and anti-discrimination board of NSW identified further areas requiring reform (NSW Law Reform Commission). For instance, in order to ensure equal treatment, changed laws ensured that families and couple in same sex are entitled to benefits that were not accessible previously. These include bereavement benefits, widower’s pension, child support scheme, lesbians’ qualification to Widow Allowance, tax concessions, and reversionary benefits from superannuation schemes to the same sex partners and their children among others. In 2009, social security and family assistance legislation was changed where couples were recognized regardless of the partner’s gender. As a result, same sex couples are assessed in the same way and receive same entitlements as well as having same obligations as couples of the opposite sex (Australian Human Rights Commission).

It can be said that couples of the same sex have been placed on an equal footing in comparison with the couples of the opposite sex in almost every area. However, federal law appears mostly to be an exception to this process. According to the same sex rights lobby, social security, superannuation, Medicare and health insurance, taxation, immigration, and veteran’s entitlements, a ‘spouse’ is defined in regard to the couples of the opposite sex where the rights and obligations of same sex couples seem to be excluded. As a result, lacking a daily recognition leads to a real as well as a daily impact to the lives of couples of the same sex in Australia (GLRL, 2).For instance, in regard to security benefits, 4(2) Social Security Act 1991 (Cth) section 4(2) provides imply that the calculation of payments under this Act are on the basis of a person in a same sex relationship is single. As a result, some of the benefits from the social security are therefore thought to be limited to opposite sex couples such as widow allowance, payments of partner bereavement pensioner concession cards and access to healthcare cards (Karina & Drabsch, 54). In regard to health concessions, the definition of a family by the federal law is including opposite sex spouse and children in relation to qualification for pharmaceutical benefit entitlement cards and safety net concession cards. According to the same sex lobby, the definition of the family unit that is used to calculate Medicare safety net leads to a great disadvantage the families and couples of the same sex leading to substantial medical costs that are out of pockets. This is because the treatment of same sex couples is two individual who have two individual safety nets (54). In regard to taxation, the Income Tax Assessment Act 1936 (Cth) may prevent same sex couple from enjoying the income tax benefits. These include house keeper rebate, dependant spouse rebate, parent rebate, child-housekeeper rebate, superannuation rebate as well as the medical expense rebate. In addition, low income person rebate, pensioner rebate and medical expenses rebates also provide the opposite sex couples with concessional rates in regard to the determination of their eligibility but such benefits are denied to the couples in the same sex (GLRL, 3). In regard to the compensation of workers under Comcare, there is exclusion of same sex partners in definition of the dependant and spouse. In compensation and pension for veterans, although same sex persons in defense force equally receive same entitlements as opposite sex persons, the same sex partners do not receive compensation and pensions entitlements of veterans paid to a former member of defense force’s spouse. In addition, a member of parliament’s spouse may enjoy some benefits in regard to parliamentarians travel entitlements but same sex couples are excluded. In regard to judicial pensions, a surviving spouse if entitled to 62.5% in regard to pensions entitlement for the judge but this excludes same sex relationships in Judges Pensions Act 1968 (Cth) (Karina & Drabsch, 56).

Recognition of same sex relationship has been driven by various factors which include successful lobbying, changes in attitudes and values and change in technology.

In Australia, the Gay and Lesbian Rights Lobby (GLRL) have been very vibrant in its struggle to achieve social justice and legal equality for gay men and lesbians. With their strong history in regard to legislative reform, they have led the fight towards their recognition and this led to passage of various Acts as well as subsequent amendments. The group was also successful in lobbying for on the equalization in regard the age of consent for gay men. Rights and recognition of the children that gays and lesbians have raised has also been a strong focus which lead to reviewing of social research in regard to same sex families as well as launching “Meeting the parents” campaigns. In addition, their success has been based on right-based arguments with an argument that couples of the same sex are not different materially from opposite sex couple, thus, calling for the same legal treatment as a statutory right (Kantrowitz et al, 42).

Recognition of same sex relationship has also been driven by the changing attitudes. There is currently an increasing support of same sex marriage in various countries throughout the world and many see the legal recognition of same sex relationship as inevitable. In addition, the number of people who knows about same sex relationship has been rising dramatically and having lesbian or gay acquaintance is usually associated with the support of the same sex marriage or relationship. As a result, the opposition of same sex marriage is gradually reducing as more people accept them in the society.

However, recognition of same sex relationship is also challenged based on the values that couples of the same sex are inherently different from those of opposite sex and that marriage is morally and practically requires a man and a woman. In addition, those opposing same sex marriage see it as a major conflict between their own religious beliefs and homosexuality or lesbianism.

In regard to technology, same sex relationship is being boosted. Lesbians as well as bisexual woman have an option of artificial insemination as a way of having a child without having a male partner. The law also allows same sex couples an option of surrogacy where a woman can bear a child for another person or carry a surgically implanted fertilized egg of another woman to birth. For the couples of the same sex utilizing in vitro fertilization or artificial insemination treatment together, they are also able to have both their name of the child’s birth certificate (Rosenthal, 245).

In conclusion, in the last two decades, the legal recognition of same sex relationships has been effective where substantial changes have been witnessed in Australia. More importantly, presence of laws such as anti-discrimination laws have been well adopted thus, resulting to prohibition of discriminations based on sexual orientation with de facto relationship redefined to include couples of the same sex. This indicates that introduction and passing of various Bills will lead to more recognition of same sex relationships in all territories.

However, where these bulk changes have been implemented in states and territories, federal level hinder such progress as there are areas of law where there is difference in regard to the rights and obligations afforded to same sex relationships as compared to opposite sex relationships. Most of these areas include the matters of finance. In addition, the community is also dividend in regard to its believed best approach to the couples of the same sex and the issues of parenting, marriage and adoption. As a result, the issue of same sex relationships leads to strong responses and can result to tension between various Australian governments. Thus, the extent of further changes in regard to the pace of such reforms in relations to recognizing same sex relationships legally also remains to be seen.

Work cited

Australian De Facto Relationships Cases. (2005): 9-695.

Australian Human Rights Commission. Same-Sex: Same Entitlements: Chapter 4, http://www.humanrights.gov.au/publications/same-sex-same-entitlements-chapter-4

Gay and Lesbian Rights Lobby, The NSW Anti-Discrimination Act, Submission to the Attorney General’s Department in response to Law Reform Commission Report 92 (1999), GLRL, Sydney, (2000): 2-9.

Kantrowitz et al. The New Face of Marriage. Newsweek, March, 1 2004

Karina A., & Drabsch, T. Legal Recognition of Same-Sex Relationships, NSW Parliamentary Library Research Service, 2006: 1-62

Millbank, J. & Sant, K. A bride in her every-day clothes: same sex relationship recognition in NSW, Sydney Law Review, 22.181 (2000): 18-190.

Millbank, J. Lesbian and Gay Families in Australian Law – Part One: Couples, Federal Law Review, 34.1, (2006): 1- 30.

Millbank, J., Same-sex Families, Hot Topics 53, Legal Information Access Centre, 2005, p 5.

NSW Law Reform Commission, Review of the Property (Relationships) Act 1984 (NSW), Discussion Paper 44. 2002

Property Relationships Act 1984 (NSW), s 4(1).

Rosenthal , S.M. The Fertility Sourcebook. Third Edition, (2002): 245