Legal studies AT3 essay (marriage equality)

Question 1

Para 1: Property Relationships Legislation Amendment Act 1999 (NSW) crux

Answer 1

The Act amended and renamed the De Facto Relationships Act 1984 (NSW) as the Property (Relationships) Act 1984 (NSW) which extends the rights given to heterosexual couples, same-sex couples, and people in domestic relationships.

Question 2

para 1: Property Relationships Legislation Amendment Act 1999 (NSW) effectiveness

Answer 2

• It amends 20 pieces of legislation to include same-sex couples as de facto couples in the areas of division of property on relationship breakdown, inheritance, decision-making in the event of death, compensation, stamp duty, and amendments to superannuation law at a Federal level.
• It broadened the definition of the concept of a family to include cohabiting same-sex couples and people in close personal relationships
• It amended the Victim Support and Rehabilitation act 1996 (NSW), allowing same-sex partners victim compensation if their partner was killed in a crime
• The article ‘Leading the way: recognition of same sex and domestic relationships in NSW’ (Kathy Sant, 1999) claims that the Act makes up a fairly comprehensive reform covering a wide range of property and non-property rights on same-sex couples

Question 3

para 1: Property Relationships Legislation Amendment Act 1999 (NSW) ineffectiveness

Answer 3

• In the article ‘Marriage and other arrangements’ (SMH, 2022), it indicates that the NSW Law Reform Commission proposes further changes to remove all discrimination in terms of marriage and other arrangements for partners and children after a relationship breaks down
• The Act doesn’t allow for same-sex couples to adopt children, which is a gap in equality between heterosexual and same-sex couples which was later addressed in the Adoption Amendment (Same Sex Couples) Act 2010 (NSW)

Question 4

para 2: Same Sex Relationship (Equal Treatment in Commonwealth Laws) Act 2008 crux

Answer 4

The Act amended 84 federal laws to give inclusion and equality to same-sex couples and their children.

Question 5

para 2: Same Sex Relationship (Equal Treatment in Commonwealth Laws) Act 2008 effectiveness

Answer 5

It makes corresponding amendments to tax legislation to include the Same Sex Spouse concept for Superannuation tax treatment. De facto couples in all states and territories except WA can make FLT binding financial agreements that stipulate property and financial arrangements that will apply to court to determine or approve these arrangements

In the paper ‘Property and financial matters upon the breakdown of de facto relationships’ (AIFS, 2014), it is noted that recent changes to the Family Law Act 1975 (Cth) mean that most same sex and heterosexual couples can have their property and financial disputes dealt with in a substantially the same way as married couples, so they are no longer required to issue separate proceedings in different court systems

In the report ‘Inquiry into the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill 2008’ (AHRC, 2008) supports the new definition of de facto partner and de facto relationship as it ensures that same-sex couples are treated equally under Commonwealth laws that accept the new definition

Question 6

para 2: Same Sex Relationship (Equal Treatment in Commonwealth Laws) Act 2008 ineffectiveness

Answer 6

Whilst the law has been reformed to provide same-sex de facto couples with the same equality as heterosexual couples, further reform is needed for such equality to be achieved in marital status

In the article ‘Fact Check: Do same-sex couples in a settled relationship have the same rights as married couples?’ (ABC, 2017), couples who haven’t registered their relationship may have to prove that their relationship exists on demand and even those who have a registered relationship may not find it recognised outside their state/territory, so more reform is needed for have equality in law

Question 7

para 3: Marriage Amendment (Definition and Religious Freedoms) Act 2017 crux

Answer 7

The Act amends the Marriage Act 1961 (Cth) to allow marriage between two persons of marriageable age regardless of their gender whilst protecting religious freedom in relation to marriage.

Question 8

para 3:Marriage Amendment (Definition and Religious Freedoms) Act 2017 effectiveness

Answer 8

In subsection 5(1) of the Act, the definition of marriage is changed from “a man and woman” to “2 people” which grants same-sex couples marriage equality

It amends the Sex Discrimination Act 1984 to provide that a refusal by a minister of religion/celebrant to solemnise the marriage in prescribed circumstances doesn’t prescribe as unlawful discrimination

In the article ‘Australia says yes to same sex marriage in historical postal survey’ (The Guardian, 2017), there was a turnout of 79.5% of Australians participating in the Plebiscite with a 61.6% ‘yes’ vote, indicating that it meets the moral and ethical standards of society

In the article ‘Who supports same-sex marriage in Australia? And who doesn’t?’ (ABC, 2017) indicates that from 2005-2015, support rates of same-sex marriage increased across many population subgroups

Question 9

para 3: Marriage Amendment (Definition and Religious Freedoms) Act 2017 ineffectiveness

Answer 9

The process in which the Act was achieved was unnecessary through the plebiscite as verbal and physical assaults doubled in the aftermath of the Plebiscite towards LGBTQ people when Parliament electorates could’ve represented their groups of people as explained in the article ‘A year after same-sex marriage postal voite, we’re still wounded from a brutal campaign’ (ABC, 2018)

Whilst the Act amended the Sex Discrimination Act 1984 in an attempt to grant religious freedoms, the Religious Discrimination Bill 2023 (Cth) which seeks to ensure that statements of belief are not considered as discriminatory specifically regarding same sex couples indicates that more should’ve been included to do so.

Question 10

para 2: Same-Sex Relationship (De Facto Financial Matters and Other Measures) Act 2008 (Cth) crux

Answer 10

The Act amends the Family Law Act 1975 (Cth) to provide heterosexual and same-sex de facto couples in Australia with property and maintenance matters dealt with upon the breakdown of the relationship.

Question 11

para 2: Same-Sex Relationship (De Facto Financial Matters and Other Measures) Act 2008 (Cth) effectiveness

Answer 11

• ‘Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 Bills Digest’ Report’ (Parliament, 2008) mentions that Women’s Legal Services Australia submits that the Family Court is the appropriate institution to resolve all maintenance disputes, as opposed to other courts
• Aspects of the Family Law Act’s property distribution scheme are specifically oriented towards protecting a child’s right to an adequate standard of living. This wasn’t properly considered and amends the law so that it aligns with the International Conventions on the Rights of a Child
• In the report ‘De Facto Property Under the Family Law Act’ (Hr. Justic Garry Watts, 2008), it mentions that if partners move to another state, their financial agreement will be recognised in their new state of residence.

Question 12

para 2: Same-Sex Relationship (De Facto Financial Matters and Other Measures) Act 2008 (Cth) ineffectiveness

Answer 12

• A question asked is whether a Commonwealth legislative regime should apply uniformly to de jure (i.e. married), de facto and same sex relationships. It is suggested that different legislative regimes should apply to these relationships because they are different and those who choose to enter de facto and same sex relationships do not wish their relationship to be regulated in exactly the same way as de jure couples
• In the ‘Inquiry into the Family Law Amendment (De Facto Financial Matters and Other Measures)Bill (HREOC, m2008), the extension of section 60H of the Family Law Act to same-sex couples doesn’t ensure parental status for gay fathers whose child is born through a surrogacy arrangement. The new definition of ‘Child of a De Facto Relationship’ only applies to property matters and not to matters regarding children

Question 13

marriage equality crux

Answer 13

Whilst the law has been proactive in addressing marriage equality, further law reform is still required to grant same-sex couples with systemic equality in the legal system.