Legal recognition for same sex couples
By Vanessa Balnaves, 2017
Same sex couples in South Australia, and their families, are the beneficiaries of a raft of changes to legislation which support LGBTQI rights. Some of those changes came into force on 17 February 2017, others from 1 August 2017. We take a look at the main implications of the new laws.
From 17 February 2017, same sex couples in South Australia became eligible to apply to adopt a child, following the proclamation of the South Australian Adoption (Review) Amendment Act 2016. That brings South Australia into line with other states, although the Northern Territory still does not allow same sex adoption. Prior to the change, same sex couples in SA were able to foster children, even long term, but were not able to formalise that relationship.
The change also makes things easier for same sex couples in circumstances where one partner is the biological parent of a child. Before the legislation was passed, the non-biological co-mother or co-father was required to seek a parenting order from the Family Court of Australia in order to gain parental rights. Without that Court Order, the co-parent had few rights. If a birth parent died for example, in the absence of an Order, the child could be taken by family members. While the parenting Order avenue is still open to those couples, they may also use stepparent adoption as an alternate path to gain parental rights.
Assisted Reproductive Treatments (ART) and Surrogacy
Prior to 2017, South Australia was the only jurisdiction to ban fertile single women and lesbians from accessing assisted reproductive treatments. Same sex couples were also not permitted to access altruistic surrogacy (commercial surrogacy is illegal in every Australian jurisdiction including for heterosexual couples).
Recognition of Domestic Relationships
The Marriage Act 1961 (Cth) was amended in late 2017 so that it now defines marriage as
“the union of 2 people to the exclusion of all others, voluntarily entered into for life”. Before that change, a marriage was defined as “ the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” which excluded same sex couples from legal marriage.
Same sex couples can now choose to be married, or remain in a de facto relationship. Same sex couples in a de facto relationship who seek legal recognition of their partnership generally have to demonstrate that their relationship has existed for a defined period. That period varies depending on what area of law an issue falls within.
Where the South Australian Family Relationships Act 1975 applies, a de facto couple has to show they have lived together for at least three years.
Recognition of Overseas Relationships
A heartbreaking and high profile case in 2016 brought public attention to the disparity of rights for LGBTQI people in Australia as compared to other developed countries. Marco and David Bulmer-Rizzi were married in the United Kingdom and honeymooned in South Australia in 2016. Tragically, David died whilst still on his honeymoon. Because South Australian law did not recognise overseas marriages between same sex couples, his widower was informed that David’s death certificate would state ‘never married’. The South Australian Premier personally intervened to remove the reference. The case attracted significant public interest and was instrumental in progressing the solution in South Australia.
The Relationships Register Act 2016 (SA) came into effect on 1 August 2017.
It allows relationships to be recognized without the need to demonstrate, for example, the onerous three year requirement of “cohabitating” under the Family Relationships Act 1975 or the two year period under the Family Law Act 1975.
To be eligible to apply, at least one partner must live in South Australia; both must be over eighteen; neither can be in another registered or legally recognised relationship (such as a marriage); and they cannot be related by family. Application is via statutory declaration and there is a 28 day cooling off period after the application is made. Penalties apply for misleading information.
Being in a registered relationship may also impact upon your Will.
If you’re in a same sex relationship and would like to find out more about what these changes mean for your family, contact our office and speak to a specialist now.
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