Marriage is a significant area of family law yet to meet the needs of contemporary society, it is anachronistic, lagging in responsiveness and infringes on the basic liberties of same-sex couples. It beggars belief that successive governments have failed to address the issue adequately despite the ratification of the ICCPR in 1966. Whilst there has been significant movement towards some level of equality, recognising these individuals as de-facto, the law still regards homosexual couples as second- class citizens. At present, the current government has made minimal movement towards effectively recognising these rights due to the proposed implementation of a resource inefficient, non-binding plebiscite. The key question is whether federal power is limited by the view of 19th Century framers of the constitution that ‘marriage’ means a union between a man and a woman. As societal values progress towards accepting and recognising same-sex relationships, the law should evolve to encompass these views, providing rights for all citizens indiscriminate of their private, sexual relationships.
Under The Marriage Act 1961 (Cth) a marriage is deemed to be valid only where the union is voluntary, between a man and a woman, is for life and to the exclusion of all others. Indeed, it was not until 1984 that homosexual activity was decriminalised all over Australia, with the Toonen v Australia case prompting Tasmania to follow lastly. Over the past few decades there has been increasing recognition within society and thus in the legal system of same sex relations. Whilst homosexual relationships are yet to gain equal status with married heterosexual couples, they are now entitled to de facto status. However, even the progression toward de facto status was a long and arduous journey. Initially, de-facto relationships were recognised under The De-Facto Relationships Act 1984 (NSW) which recognised de-facto relationships, though not those of same-sex specifically, and was provided for the division of property when the couple separated. In light of the recognition of de-facto couples, several piece meals cases began to prompt reform as it was evident that societal values were shifting. As in the case of Hope & Brown v NIB (1995) where the tribunal had ruled that the men had been discriminated against by the health fund on the grounds of their sexual orientation, as by this stage, NIB was one of the last major health insurers to recognise same-sex families. Thus, The Property (Relationships) Legislation Amendment Act 1999 (NSW) reformed the De-Facto Relationships Act 1984, including same-sex couples in several provisions regarding property division that had previously only applied to de-facto couples. However, it was the Family Law Amendment (De facto financial matters and other measures) Act 2008 (Cth) which was most significant in providing full equality to same-sex couples in matters regarding property divisions. In 2010, following the AHRC Same Sex: Same Entitlements report 2007, and the case of Re: Williams and Jane, The Adoption (Same Sex Couples) Act 2010 (NSW) was passed which gives same sex couples the exact same rights as normal couples in respect to adoption, which was effective in terms of responding to the rights of same-sex couples. – right to found a family
NSW was the first state to pass legislation, which extended the protection of the law to same-sex couples so comprehensively, and was thus effective in its responsiveness as the law began to reflect changing social values.
However, these changes were made in order to ease the processes of division in the legal system only, as opposed to changes that recognised same-sex couples equally to heterosexual in terms of marriage. In 2004, the government amended the common law definition of marriage to explicitly state that it was between a “man and a woman” as a response to the case of Re:Kevin 2001 which allowed a trans-sexual to marry as a man and woman due technicality.
It also ensured that marriages entered into legally in other countries were not recognised, sending a message to the general public that the law was not due to prompt reform in the area at any given point. However, this caused large public scrutiny and outcry from various groups, which wish to protect the rights of same sex couples, as it did not uphold the increasing support in community standards. In 2007 the AHRC conducted a report called “Same sex: Same Entitlements” this catalysed huge reforms in NSW, amending an abundance of 84 commonwealth acts, removing entrenched discrimination in areas of social policy such as taxation, superannuation, Medicare, workers compensation and child support. For example, The Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW) meant that female same sex parents who conceive a child through artificial means are treated in the same was opposite sex parents. More significantly, a later reform The Relationships Register Act 2010 (NSW) means that same sex couples can register their relationship with the NSW Registry of Births, Deaths and Marriages. This provides proof of the existence of the relationship for purposes of the law and is similar to a civil union in other parts of the world. Thus, it is seen that the law has been increasingly responsive toward upholding the civil liberties of same-sex couples and upholding community standards.
PLEBISCITE, THE LAST STEP TO FULL EQUALITY?
At present, the Australian nation is divided in terms of reform to provide full equality for same-sex couples in the area of marriage. Most significantly, however, the nation is divided more so in the processes which must be taken in order to fulfil this role. In August 2015, the Abbot Government committed on the coalition to a plebiscite on whether Australia should enact marriage equality. Since the election, Prime Minster Malcom Turnbull and Attorney-General George- Brandis have promised the vote will take place soon. However, whilst the fundamental argument of the plebiscite is to give Australian’s a vote in the area of family law, the plebiscite is constitutionally unnecessary, as ruled by the High Court in late 2013 that the Federal Parliament has the constitutional ability to pass legislation providing for marriage equality. This is in contrast to Ireland, whereby their recent referendum was necessary to pass law. Moreover, given other significant areas of law which desperately need funding alongside the already known acceptance of same-sex couples (62% ‘australian marriage equality statistics’, the law must be seen as resource inefficient as it is proposed that the current plebiscite will cost roughly $160 million dollars. Samuel Leighton Dore, a journalist writing for ‘heaps gay’ criticises its resource inefficiency, “providing a tax-funded national platform for Australian citizens to tear each other apart in a way that is inherently personal-not political.”
CONCLUSION: Thus, marriage is remaining area of law… community standards/ division to do with the erosion of the institution of marriage etc. Plebiscite resource inefficient, however, credit due for significant reforms in areas of de facto relationships and legal processes of division.