The issue of "Gay Marriage" has been a frequent topic of debate for several years now. With governments around the world legalising marriage for same-sex couples, it is only a matter of time before Australia follows suit, leaving many in the GLBTI community wondering how the inevitable introduction of gay marriage will change their legal rights. The answer is more complex than you might expect.
Some rights are governed at Federal level. At present, de facto couples including same-sex couples have the right to apply to the Family Court for a property settlement or parenting orders. There is no distinction between the entitlements of married couples or de facto couples.
In addition, same-sex couples in Australia can choose to create a "pre-nuptial" type financial agreement, known as a binding financial agreement, to protect their property interests from future claims by an ex-partner.
The introduction of gay marriage is unlikely to alter these rights.
Many other issues surrounding same-sex couples' legal rights, such as those relating to Wills, Powers of Attorney, adoption, and surrogacy, are governed at State level, and have historically applied to married or heterosexual couples only. It is in these areas that the greatest improvements to same-sex couples' legal rights are likely to occur if and when the Federal Government legalises, and recognises, marriage between same-sex couples.
Currently, in Victoria at least, a succession of reasonably progressive State governments have brought the legal rights of same-sex couples largely in-line with their heterosexual counterparts:
- since December 2008 same-sex de facto couples have had the right to register their relationships with the Births, Deaths and Marriages registry. Registering a relationship effectively affords a same-sex de facto couple the same rights as a heterosexual de-facto couple, and grants recognition as "next of kin" for a variety of legal purposes, including hospital access, medical decision making, superannuation death benefits, inheritance rights, property tax concessions, landlord/tenancy rights, and victims of crime entitlements, to name but a few;
- legislation is currently in progress which will recognise same-sex marriages that have been conducted overseas, provided that one of the couple is ordinarily resident in Victoria. Same-sex couples who meet the criteria will be able to register their overseas marriage with the Victorian Births, Deaths and Marriages registry, and will have the option of conducting a ceremony at the same time. This legislation will come into effect on 1 October 2016; and
- Victoria has also introduced the right for same-sex couples to adopt children, which will come into effect on or before 1 September 2016. The new legislation will also allow same-sex step-parents to adopt their partner's children as their own. This will have important flow-on effects in respect of post-separation parenting disputes: barring any preventative moves by the Federal Government, adoptive same-sex parents should automatically receive full parental rights under Federal law, without the need for a Court to first make a declaration recognising them as a parent.
There are some quirks of the common-law legal system which legalising gay marriage will not rectify. One such quirk is the presumption of advancement, which presumes that any transfer of property from a husband to a wife (but, curiously, not from a wife to a husband), or from a father to his child (but, equally curiously, not a mother to her child), is presumed to be a gift. It is not clear whether, or how, this presumption might apply to transfers between two husbands, two wives, or from same-sex parents to their surrogate and/or adopted children. The courts will need to address these issues as they arise in time.