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Dear Jenni ...

Relationship and Parenting Rights Q&A

Jenni Millbank is a Barrister and Professor of Law at the University of Technology, Sydney. Jenni has an extensive background in family law and same-sex relationship recognition. She can answer your questions on relationship rights, property matters and parenting issues.

Click here to email your questions. Answers will be posted here monthly.

Please note that this column is information of a general nature only and does not constitute legal advice.

*NEW* Questions Answered this Month:

Previously Answered Questions:

Adoption, Surrogacy and Parenting

Civil Unions and Marriage

De Facto Relationships

Protecting your Relationship Rights

Sex

Superannuation

Adoption, Surrogacy and Parenting

Are fertility clinics in NSW and Qld prohibited from proving access to lesbians?

There is nothing in NSW or Qld law to stop fertility clinics from being accessible to lesbians. However Qld law allows a clinic to discriminate on the basis of sexual orientation if it wants to (by exempting it from state anti-discrimination law). In NSW this would likely be unlawful discrimination but this has never been tested through a case. There are a number of private clinics and at least 2 public hospitals in Sydney that do treat lesbians. However there can be long waiting lists for access to donor sperm.

In most states it is a matter of individual practice whether clinics are accessible or not. Some clinics use a restrictive definition of “clinical infertility” to exclude lesbian couples and single women, while others are happy to treat “socially infertile” women (although this category may still exclude you from Medicare rebates, so be careful to ask in advance about this). It is a good idea to ask around and get advice from other women before you approach any provider so you have an idea of what to expect.

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Are agreements between donors and mothers binding?

In general, no. However some aspects may be binding, for example a voluntary agreement to provide child support by someone (either a co-mother or a donor) who is not covered by the legislation, could be treated as a contract and enforced.

Agreements about care, residence and contact with children are never binding as the court always has jurisdiction to determine what is in their best interests. Nevertheless, agreements may be taken into account, for example as evidence of the parties intentions as to the kind of family form they envisaged.

Agreements are also a good way of making sure everyone knows what everyone else intends before conception.

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What is the legal position of known and anonymous donors?

Firstly, it is important to note that whether a donor is known or anonymous, he is not a legal father under state law as long as the baby is through assisted conception. It does not matter whether assisted conception takes place through a clinic or with a syringe at home. Sperm donors do not have rights as a parent nor do they have liabilities, such as child support. Conversely, no matter what your intentions or agreement with the donor is, if you conceive through intercourse, then he will be a parent.

The position is less definitive under Federal Family Law, but so far the Court has followed state law. It is important to note however that some judges have suggested in recent years that they could find that a known donor is a parent under the Family Law Act. This would have major consequences because of a much greater emphasis on father’s rights under the Act in recent years, including a presumption of shared equal parental responsibility (e.g. equal say in major long-term decision-making) even if they have never lived with the child, and a requirement that the court consider equal time or substantial and significant time with both parents in contested matters. At the moment, a known and involved sperm donor is considered a person concerned with the care, welfare and development of the child – not a parent – so there is no presumption in favour of contact – although it will be ordered if he can show it is in the child’s best interests.

Below are some of the pros and cons to consider.

(a) Anonymous Donors

In NSW there are several non-discriminatory fertility clinics that lesbians can access, although only a limited number of them have stores of anonymous donor sperm. Only South Australia, the Northern Territory and Victoria still have formal rules excluding lesbians from services.

Some states have disclosure regimes in place so that the child can contact the donor on reaching 18, in the same way as is done with adoption. NSW is considering such a regime but it hasn't happened yet.

The Pros:

  • Simple no-strings attached option.
  • You can decide your family form and begin trying to conceive without needing to negotiate roles and responsibilities with a donor.
  • You do not need to be concerned about conflict with a donor in later years, or other complications such as his family involvement.
  • Sperm is tested and frozen so is very safe.
  • If you do have fertility problems they should be diagnosed early on.

The Cons:

  • It can be costly. Some clinics will define you as ineligible for Medicare rebates if you haven't been trying to conceive previously.
  • Many clinics have inflexible medical protocols about tests and treatment. So it is not a process you have much control over (you can't just pay & take the sperm home the way they do in the L Word).
  • NSW does not currently have a central donor registry or a system for donors and children to make contact later in life if they want to.
  • There are a limited number of private clinics with donor sperm, and long waiting lists at public clinics
  • There are limited donors to choose from and often very little information on which to base your choice.

(b) Known Donors

Women may choose a known donor because they want the option for the child to meet and know their biological father, or because they wish to avoid the medicalised model of a clinic.

Pros:

  • You can answer the child's questions about their origins simply and give them direct access to their biological father as a child.
  • A lot of current psychological literature stresses children's right and need to know their biological origins and to have some contact with biological parents. (Although note that much of this is based on the experiences of children who were adopted or born through assisted reproduction where their families concealed the truth from them, so may not be applicable to lesbian families where children know the truth from the outset).
  • Extending your potential support network may be a big help to you caring for the child.
  • A range of choices as to the donors role are open to you.
  • Trying to conceive in a low cost low tech environment like your own home may be more relaxing.
  • Far less costly.

Cons:

  • There may not be the right man for you (eg in his intended level of involvement and role) or he may not agree.
  • Whatever agreement you come to about his role, expectations and circumstances can later change.
  • You need to be confident that your donor is in good health and agrees to a testing process.
  • Even though a known donor is not a legal parent he can still apply for and be granted contact by the Family Court. Every case is determined on the basis of the child's best interests, but in some past cases the Court has paid attention to the donor's pre-conception intention to be an involved parent over the objections of the mothers.
  • The status of known donors is presently uncertain in the Family Court, and there is a general trend to far greater rights for fathers.

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Is second parent adoption possible in Australia, ie can a lesbian co-mother adopt children born to her partner?

In Western Australia and the ACT it is possible to use step-parent adoption provisions- although if you live in those states and the children were born through assisted conception you may not actually need to adopt them, as the law there presumes the mothers female partner to be a legal parent for the purposes of all state law as long as she consented to the conception.

In Tasmania registered couples can apply to adopt a child as long as one partner is biologically related to the child.

In NSW and the other states it is still not possible for same-sex couples to use step-parent adoption provisions (and they are not really appropriate for same-sex couples anyway, as they include a presumption against adoption on the basis that there is assumed to be another legal parent whose relationship is being severed by the adoption).

You also cannot adopt as an individual because this would sever the legal relationship of the birth mother.

The best option is to seek parenting orders by consent from the Family Court. These can cover residence and parental responsibility. It is a relatively simple process that can grant extensive rights to the co-mother. It provides an important "status quo" if the birth mother were to die - so for example other family members could not come and take the child. It also provides a status quo if a couple separates - so for example the birth mother could not, without court orders, just take the child to live in another country.

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Would marriage give the right to adopt? Or would civil unions or de facto status do so?

Both married and heterosexual de facto couples are eligible to apply to adopt and so either married or de facto status for same-sex couples should bring the same eligibility. Civil union status would only do so if a specific inclusion of that status were made in adoption law. However note that there are very few Australian children available to adopt and relinquishing parents can express a preference for who they want. Same-sex couples, whether married, civilly unioned or de facto, would be unlikely to be eligible to adopt children from overseas because of the requirements set by the sending countries.

Same-sex couples in WA has been eligible to adopt since 2001 but so far no child has been placed with a same-sex couple.

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Is it possible to become a parent through surrogacy in Australia? What is the law with regards to payment to the surrogate mother by the donors?

The laws about surrogacy in Australia are very complex and surrogacy, particularly if it involves payment, is illegal in many states. It is important to ensure that you get detailed legal advice if you are considering surrogacy. There is no current prohibition on surrogacy in NSW, although a Bill to ban commercial surrogacy is being considered by government at the moment.

Even in the states which allow surrogacy, there are strict conditions on how surrogacy must take place such as bans on advertising. Furthermore, it may be difficult to access fertility services to conceive, and the surrogate parent (and a partner) not the commissioning parents will be the legal parents to the child.

For some general information on surrogacy in Australia, see an article I recently published in the Sydney Star Observer on 23 February, 2006. Click here to read it online.

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What is the legal standing of surrogacy in Australia for gay men wanting to be fathers?

There are three big issues with surrogacy, all of which impact on the likelihood of gay men being able to have a child of their own: 1. The Legality of Surrogacy Arrangements 2. Access to Fertility Services to conceive 3. Parental status of children born through surrogacy

The long answer addressing each of these points follows below under these headings. The short answer is that it is very hard to have a child through surrogacy in Australia because many states prohibit surrogacy arrangements (although NSW currently does not), fertility services discriminate against gay men, donor eggs are very rare, and finally if a child is born through surrogacy the legal parents will be the birth mother (and a male partner if she has one) not the commissioning parents. However if you are really determined and well resourced, these difficulties are not insurmountable, so read on…..

1. The Legality of Surrogacy Arrangements

There is often a distinction drawn between commercial and non-commercial or altruistic surrogacy. Most Australian states prohibit commercial surrogacy (ACT, Qld, Tas, SA, Vic). This means that it is an offence to pay of offer to pay someone to be a surrogate (in Victoria this includes the payment of medical expenses, but generally such expenses are not defined as commercial payments). Some states also prohibit non-commercial surrogacy (Qld, Tas, SA). In most cases in the states listed above, it is also an offence to advertise for a surrogate or assist with and advise upon a surrogacy arrangement – even if it is not commercial. So even lawful non-commercial agreements have to be arranged privately in most Australian states – the exception is NSW.

NSW does not currently have legislation on surrogacy. So at the moment (Jan 2006) it is not illegal to advertise for or enter into either a commercial or non-commercial surrogacy agreement in NSW. However there is a draft Bill (the Assisted Reproductive Technology Bill 2003) under consideration by government that, if passed, would prohibit commercial surrogacy and advertising for commercial surrogacy in NSW. If the Bill passed, non-commercial agreements would remain legal in NSW, as would advertising for them.

It is important to note that surrogacy agreements and arrangements are not contracts. You cannot enforce them in court. So if the birth mother changed her mind before, during or after the pregnancy you could not rely upon the agreement to compel her to relinquish the child. (You could initiate Family Court proceedings for residence or contact with the child, but this would be determined by an assessment of the child’s best interests, not on the basis of what was agreed by the parties).

2. Access to Fertility Services to conceive

The need to use fertility services will depend on the kind of surrogacy arrangement. “Partial surrogacy” involves a birth mother who conceives using her own egg. If this is what you want, and she lives close by, you may be able to simply use home insemination without needing to use a fertility service. Whether or not the egg is hers, the birth mother is a legal parents in all Australian states. However, having a mother who uses her own egg means that you cannot use the provisions for change of parental status in the ACT (which may also be introduced in Vic – see below). It also may make the arrangement more complicated emotionally, as in some cases it may make it more difficult for the birth mother to relinquish the child.

If you want to use donor ovum there are two difficulties – one is finding a woman who is prepared to be donor in addition to finding a woman who will be a surrogate. It is prohibited in all Australian states to pay an egg donor, although it is acceptable to cover medical expenses.

The second hurdle is finding a fertility service that will provide IVF services to assist in a surrogacy arrangement. In SA, WA, Vic and the NT, fertility services must exclude a surrogate and commissioning parents by law on the basis that they are not infertile (although note that Vic has recommended changing this). In Qld and Tas services must exclude surrogates because all forms of surrogacy, including non-commercial surrogacy, are illegal there. In the ACT or NSW it may be possible to access privately run services even if not clinically infertile, but it is unlikely that you would be eligible for Medicare benefits – meaning that the cost per cycle would be around $10,000.

All states still require a sperm donor to sign a “lifestyle declaration”. Declaring that you have had male-male sex in the past 5 years will mean that most services would reject you outright if you were an anonymous donor. As the donor to a known woman in NSW, it would likely result in additional storage and testing.

3. Parental status of children born through surrogacy

Once a child is born, there is the further issue of attaining parental status for commissioning parents.

Even though the child is biologically yours, because he or she was conceived through IVF or assisted insemination (whether at a clinic or at home), you will not be a legal parent unless you are the consenting husband or de facto partner of the birth mother. However a lack of parental status does not mean you have no rights. Any person concerned with the care, welfare and development of a child can apply to the Family Court for residence, contact or parental responsibility. You can do this simply by consent with the birth mother, or in contested proceedings without her consent in the case of a dispute.

In the ACT there are provisions for birth parent and commissioning parents to apply to the ACT Supreme Court for a change of parental status from the birth parents to the commissioning parents. These can be used by gay men, but only if: the commissioning parents live in the ACT, the child was conceived through IVF carried out in the ACT, the birth mother is not the genetic mother, at least one of the commissioning parents is a genetic parent, the birth mother and her partner both consent, and the baby is between 6 weeks and 6 months at the time of the application. So far the ACT is the only jurisdiction in Australia to introduce such provisions, but Victoria may do so as well.

It is not possible to use adoption orders in NSW to gain parental status, because privately arranged adoptions are not permitted, and because same-sex couples are not eligible to jointly adopt. You could conceive through sex, or marry the surrogate, either of which would render you the legal father of the child. A less extreme option is to apply to the Family Court for parental responsibility. This can grant the right to make major decisions about the child, such as medical care, applying for a passport and so on, and would include where the child lives. It is not exactly the same as parental status, for example it doesn’t flow through to areas such as inheritance, but it does say that you are the person responsible for the care of this child and in charge of what happens to them. The Family Court has made these orders in favour of gay men in recent years, including men who had a child from surrogacy arrangements made overseas. These orders have granted equal rights to the biological and non-biological father in a gay couple.

The Upshot:

It is possible to have a child through surrogacy in some parts of Australia – with the ACT and NSW being the most conducive. In NSW at the moment you advertise for a surrogate and can pay a surrogate, although you cannot pay an ovum donor. In the ACT you can’t advertise for a surrogate and you can’t pay either a surrogate or an ovum donor. In both NSW and the ACT you may be able to use a private IVF service for a surrogacy arrangement, although it would probably be fully self-funded.

Once the child is born, if you are in the ACT you can apply to have parental status transferred from the birth mother to the commissioning parents. If you live outside the ACT you can apply for parental orders by consent from the Family Court.

Get detailed legal advice on your plans and all the possibilities before you begin.

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Civil Unions and Marriage

The federal government lacks the constitutional power to introduce civil unions (as the power it is granted in the constitution is over “marriage”, “divorce” and “matrimonial causes”). What are some options available to get around this problem?

The most obvious source of federal power that could be used is the external affairs power. The federal government would attract the power to have civil unions if it entered into a treaty with other countries to give recognition to their civil unions, or if it were found to be in breach of other treaty obligations – such as the International Covenant on Civil and Political Rights (the ICCPR). A complaint under the ICCPR was the same way that Tasmania’s criminal laws against gay sex were overturned by the Keating Labor government in 1994.

This requires an individual complaint to the United Nations Human Rights Committee (HRC). Ideally, the complainants would include a series of same-sex couples where at least one of them was an Australian citizen and the couple had a form of recognition that the federal government did not honour, such as: a couple with a UK Civil partnership (one partner must have dual UK nationality to do this), a couple with a NZ Civil Union and a couple married in Canada. These couples would need to apply for and be denied federal benefits in Australia that are granted to heterosexual couples who are married or civilly unionised. The whole HRC process is done through written submissions, so it is not expensive, but it would have to be done with expert legal advice and in conjunction with a lobby group to make sure that it is well coordinated and all the bases are covered.

If the HRC upheld the complaint, then the federal government (and any future government) would be able to use the constitutional “external affairs” power to remedy it - and this would likely give them power to introduce civil unions.

Ok, so not everyone is going to be able to bring a test case, but I think it is worth a try, so spread the word.

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What federal rights available to married and de facto couples are not available to couples under a state-based civil union?

No rights available to married or heterosexual de facto couples under federal law would be conferred by state-based civil unions for same-sex couples. State-based civil unions would only affect the law of the state in question and so could provide no redress for discrimination in Federal areas of the law such as superannuation, immigration, taxation, Medicare, defence entitlements and social security. For a more comprehensive look at discriminatory areas of federal law click here.

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Do married couples have more rights than de facto couples at federal level?

The only real difference between married and de facto couples’ rights in federal law is in property division, because at the moment the Family Court can only divide the property of married couples, while unmarried couples still have to use the state courts. This is set to change soon for heterosexual de facto couples as they will be included in the family law regime (the federal government refused to include same-sex couples). All other rights, such as those in tax, social security, immigration and federal employment benefits, are exactly the same for married and heterosexual de facto couples.

So, in terms of federal rights, there is no big difference between married and de facto couples. The biggest difference is really that the status of marriage flows through into state law, and can be transported overseas, whereas federal de facto status is only applicable to federal law.

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Some people are against marriage because historically marriage treated women as property. Are women disadvantaged in any way in modern day marriage?

Originally when women married they lost the right to themselves as a separate legal entity, in law they were frankly ‘owned’ by their husbands. Some of the vestiges of this status persisted well into the 20th century, for example married women could not work in the public service until the 1960s, lost the right to their own citizenship until the 1970s, and could not refuse consent to sex with their husband until the 1980s. There are no longer any legal disadvantages to marriage for women.

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What is the difference between relationship registration and civil unions?

Generally systems that have been called “registration” grant a limited number of rights (for example in the USA there are numerous systems at a local government and even workplace level) while civil unions grant a fuller range of rights. But this is not always the case, some of the European systems used the term registration but grant a wide range of rights.

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If I register my relationship in Tasmania or have a civil union in the ACT, will that be recognised in federal law – eg for immigration purposes will I be treated as married rather than as interdependent?

No, these laws will not give you the same status as married people in federal law, although they may do for the law of the state that grants the status.

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De Facto Relationships

What relationship rights do I have at the moment?

If you live with your partner in a committed relationship then under NSW law you are in a de facto relationship. This means your relationship is recognised for almost all purposes in NSW law, such as guardianship, inheritance, property division and compensation laws (the exception is adoption). For some laws, such as property division and inheritance, you must generally have lived together for 2 years to qualify, but for most there is no time requirement.

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How is de facto recognition different from marriage or civil unions?

There are a number of differences – in how you get to be in one, in the rights it gives you and whether the status goes with you if you move or travel.

De facto recognition automatically applies once you meet set criteria. This is good in that you don’t need to do anything formal to be recognised as a couple, but it is bad if there are aspects of your relationship where you didn’t want to be recognised– for instance if you never intend to share property. (Note however that this is the same for heterosexual couples, even if they chose not to marry, they will be ascribed de facto status). All couples can opt-out of some obligations, for instance by signing a “domestic relationship agreement” – basically as a “pre-nup” - to order property in the event of a break-up. Likewise couples can opt-out of ascribed inheritance rules by writing a will.

De facto recognition gives you most of the same rights as unmarried heterosexual couples and married couples under state law. In federal law heterosexual de facto couples have extensive recognition but this has not yet been extended to same-sex couples.

Whether or not you still have rights as a de facto if you go somewhere else will depend on the laws there. At the moment every state and territory in Australia except South Australia has very similar de facto laws to NSW - so you would be recognised everywhere except South Australia. There is de facto recognition in Canada and New Zealand, but not, for instance, in the United States.

Marriage requires a couple to register their intention to marry a month in advance and then go through a formal process. For heterosexual couples marriage in fact gives very few additional rights in Australia compared to de facto recognition (the main one is access to the Family Court to divide property on relationship breakdown instead of the more expensive and less flexible state courts– but this last distinction is also soon to change). Marriage is a more easily portable status than de facto, it is recognised in all state and federal law and in the laws of other countries also.

Same-sex couples cannot marry in Australia. As a result of the 2004 marriage ban, if same-sex couples do marry elsewhere (for example in Canada), their marriage will not be recognised in Australia.

Civil Unions require couples to go through a formal registration process similar to marriage. They exist in many European countries and have recently been introduced in the UK and New Zealand. Civil unions have been described as “marriage by any other name” when they grant equal rights and as “marriage-lite” when they do not. Civil unions may not be as portable as marriage, because they are a new status so other countries have to pass laws to specifically recognise them (although note that the UK and New Zealand have already done so).

There are no civil union laws in Australia to date. It is possible that the federal government lacks the constitutional power to introduce civil unions (as the power it is granted in the constitution is over “marriage”, “divorce” and “matrimonial causes”). This remains to be tested.

The states and territories could grant civil unions (and Tasmania already has a registered partnership scheme which is similar) but these would not grant any greater rights than those already held by de factos and could not translate into federal law.

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I read that the De Facto Relationships Act applies 11 tests to determine the legal validity of a de facto relationship, and that typically gay men can only satisfy 4 of these 11 criteria. Is this so?

Section 4 of the Act, since 1999 renamed the Property (Relationships) Act defines a de facto relationship a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.”

It is quite rare for there to be contention over whether a de facto relationship exists, so there is usually no need for a court to inquire into it. For example if a same-sex couple break up and need the court to divide their property, if both partners agree that they had a de facto relationship, then it won’t be an issue.

However, if there is disagreement over the relationship existing, for example if one partner dies and their family contests the inheritance, the Court can look at a range of factors. These factors are the same for straight and gay relationships.

It is important to note that these factors are only a guideline of issues to be considered. The Act instructs the Court to take “all the circumstances of the relationship into account”, to look at only those factors that are relevant to each particular case, and that no one factor or any combination of factors is necessary to establish a de facto relationship. This last point was included in 1999 in response to gay and lesbian community lawyers concerns that same-sex relationships may not have exactly the same features as heterosexual ones. We did not want our community disadvantaged for not conforming to pre-existing conceptions of what relationships of commitment require.

The list of factors is:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.

In cases that have been decided in the past five years it is clear that even same-sex relationships that don’t conform to standard heterosexual ideals will be recognised. For example:

  • A number of cases have found that gay men in cohabiting couple relationships that were non-monogamous (including regular threesomes in one case) were still de factos because their primary emotional commitment was to each other.

  • Gay guys who met originally through paid sex, but who later moved in together were held to be de factos.
  • Closeted couples have been held to be de factos.
  • Lesbians who kept separate bank accounts through the entire relationship were held to be de factos.
  • In a recent heterosexual case, the fact that a couple had to live apart for an extended period of time while one partner cared for her ailing parents, did not stop the relationship from being a de facto relationship.
  • In another recent heterosexual case the couple had been together for 6 years but had never had a common residence – instead they took turns in staying at each other’s house for most nights of the week. This was held to be a de facto relationship.

So it is not the number of factors that you satisfy that matters, it is whether on the whole your relationship seems committed and enduring. So far the court has interpreted the category broadly and there does not seem to be any cause for concern about a diverse range of same-sex relationships satisfying the criteria.

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How do I prove I am in a de facto relationship?

One of the practical advantages of civil unions and registration systems is that the registration proves that the relationship exists, whereas with a de facto relationship you may have to prove it.

The first thing to note is that you only have to prove your relationship exists if there is someone who denies it. If you are still together this is easily solved by a statutory declaration or affidavit from both of you saying when you got together, that you live together and that you are in a committed relationship. You don’t need a court order to prove that your relationship exists.

Most frequently proving a de facto relationship is an issue when partners break up and one person, rather than denying it outright, claims that the relationship was much briefer than it was or that it had ended earlier even though the parties still continued to live together. Another common, though decreasing, scenario is where a couple are closeted, one partner dies without a will and their family denies the relationship existed and claims the inheritance for themselves.

There are a lot of simple things you can do to ensure that if you are placed in a situation of having to prove your relationship, you can do so. A relationship can be demonstrated through all kinds of evidence of cohabitation and commitment – jointly purchased property or names on leases, joint bank accounts, shared purchases of furniture or household items, or listing each other as next of kin on documents such as passports, superannuation funds and emergency contact forms. Even photos and joint invitations to social events or shared holidays are good evidence. You can also execute mutual wills in which you name each other as partners. You don’t need to prove that your relationship is perfect, or even that it is monogamous: the essence is that you live together and are committed to each other.

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Would federal recognition of same-sex couples as de facto relationships take away any of our current rights at state level?

States have exclusive power over a range of areas important to relationships, such as inheritance, burial, guardianship and compensation law. The Commonwealth has power over areas such as tax, immigration and social security.

Federal recognition as de factos would only grant rights at federal level, and would not impact on any of the rights under state law.

This is because federal law can only override state law when the Commonwealth has power over that area under the Constitution. So, even if there were Constitutional power for civil unions (which I doubt), they would also be limited in the sense that they would only be operative in federal law, unless all of the states also changed all of their laws to recognise the status granted.

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Would de facto recognition at federal level allow a government that did not like same-sex relationships to ban same-sex relationship recognition, like the marriage ban?

A later government could only repeal what had already been done – so they could take away federal rights that an earlier government had granted. But they could not revoke rights that existed at state level.

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Protecting your Relationship Rights

What rights do straight couples have that I don’t have?

In NSW the main difference is that opposite-sex married and de facto couples can apply to adopt children as couples, while lesbian and gay applicants are only able to apply as individuals. In practice, individual applicants may have a lower priority.

Heterosexual couples also have comprehensive recognition in federal law – such as immigration, superannuation, taxation and family law. There is very limited recognition of same-sex couples in these areas of federal law.

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What can I do to get legal rights and protection for my relationship now?

All state laws (except South Australia) already grant us automatic recognition as de facto couples in areas such as inheritance, guardianship, property division and accident compensation, if we live in a committed relationship. For most of these laws there is no required length of cohabitation, but a 2 year prerequisite generally applies to areas such inheritance and property division (although not for property division in the ACT or Tasmania). A number of laws that don’t give us automatic recognition can still be used if you can put the time and money into making them work for you.

Some things are really simple:

  • Keep records. If you are in a de facto relationship but don’t own property together or have joint bank accounts, make sure that you keep a copy of the lease if both your names on it, or receipts for items like furniture that you bought together, or tickets from shared holidays. If you live in the ACT you can enter into a Civil Union from late 2006 (which gives few additional rights, but can be used as proof of a relationship).
  • Write a will. If your financial affairs are simple and you only want to leave property to a few people, use a standard form from a newsagents or the precedent for a simple will in the Law Handbook. If you have a lot of property or it is complicated, get a will drawn up by a lawyer.
  • Name your partner as an executor or choose an executor who you trust will respect your wishes and your relationship. Name your partner as your de facto partner and you next of kin (this could then be used by them as proof in other situations, for example if you were injured and someone had to make medical decisions). Encourage your partner to do the same in their will.
  • If you have a child, make sure that they are named in both mothers wills. If you are the birth mother you can make name your partner (or anyone else) as the “testamentary guardian” of the child. If there is no other legal parent, this gives that person the right to live with and care for the child in the event of your death, in the absence of any court orders to the contrary. So grandparents or other relatives can’t just swoop in and take over if the birth mother dies.
  • Nominate a beneficiary in your super fund. If you die, death benefits may be worth tens or hundreds of thousands of dollars. In some super funds your nomination will be binding, while in others it won’t (although trustees are usually reluctant to go against a nomination). Some super funds allow you to do this online, so you don’t necessarily have to out yourself to your employer. This can also be valuable proof of the existence of your relationship for other purposes. Encourage your partner to do the same.

Other steps are less simple, but are still better than the costly and complicated alternatives if you don't take action on your own behalf. Many of these are particularly important if you have children born into a lesbian relationship:

  • Consider entering a domestic relationship agreement. This is basically a "pre nup" setting out how you want to divide your property and finances if you separate. You can enter into such an agreement at any time during a relationship, or at the point of separation. If done properly it is binding on you both (in most states you both must receive independent legal advice and the agreement must in writing and witnessed). It should cost around $3000, a lot less than the cost of trying to divide property in a later dispute.

    If you have children a huge advantage is that you can organise child support this way. Lesbian families are not covered by the federal administrative Child Support Scheme, but are still able to sue each other for support through a breach of promise action in the very expensive and unpredictable common law in state courts (meaning $20,000-$40,000 in legal costs). This kind of agreement, whether made during or at the end of a relationship, means that you can sort out a fair and affordable division of your child's financial needs between yourselves.
  • Seek Parenting Orders by Consent from the Family Court. Most lesbian mothers still don't know that they can use the Family Court for any child related application, even if not a legal parent. Both mothers can approach the Family Court jointly to ask for parenting orders by consent. These can cover where the child lives and who has parental responsibility over the child. It is a relatively simple process that can grant extensive rights to the co-mother to have residence of and make decisions about the child. It provides an important "status quo" if the birth mother were to die - so for example other family members could not come and take the child. It also provides a status quo if a couple separates - so for example the birth mother could not, without court orders, just take the child to live in another country.
  • Go to Canberra (or Perth, or Darwin) to give birth! The ACT, WA and NT all now grant lesbian co-mothers automatic parental status when the birth mother conceives through assisted conception, regardless of where conception takes place. They provide that if the baby is born in those jurisdictions both mothers can register themselves as parents on the birth register and be named as parents on the birth certificate. Whether that birth certificate has full legal effect in other states that don't yet recognise co-mothers remains to be seen, but it is a first step.

    If you live in the ACT, NT or WA and already have kids with a female partner using assisted conception, you can apply to the Births Registry to have the birth certificate amended to include both mothers' names.

    If your partner was not in a relationship with you prior to conception, but joined your family later, you may be able to apply for a second parent adoption in WA, Tasmania or the ACT.

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What is a “domestic relationship agreement”?

A domestic relationship agreement is basically a “pre-nup”, a binding financial agreement that you can enter into with your partner. You can enter into an agreement before or at any time during cohabitation. (After separation there is also the option of a “separation agreement” dividing property in a final way).

You need a lawyer to draw one up and both parties have to get separate advice from their own independent lawyer about whether or not the agreement is fair and in your interests.

This may sound like a vile and unnecessary thing to do when your relationship is going fine, but domestic agreements have some very important advantages. Firstly, although they mostly cover financial matters, you can also include a wide range of other things that courts don’t deal with that may be really significant to you – such as who gets to keep the pets, or which one of you will stay in your house if you split.

An agreement provides both certainty and flexibility: only in rare circumstances will courts overturn a properly executed agreement, but you can both vary it at any time by consent if things change and you want to make new provisions.

For lesbian couples with children these agreements are a simple and practical way to provide for child support in the event of a break-up – an issue that is otherwise incredibly complicated to resolve under existing law.

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How can I enter into a domestic relationship agreement and how much will it cost?

The first thing you would need to do is sit down with your partner to talk through your contributions and expectations. Then you can visit a lawyer who will draw up an agreement. If you are happy with it then your partner needs to also visit a different lawyer to get independent advice on their position under the agreement.

You should expect that the whole process will cost a couple of thousand dollars. The clearer you both are about what you want, the faster and cheaper it will be. If you change your minds about what you want included, or can’t agree to terms and need to go back and forth with different versions, then the expense racks up.

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Sex

What is the age of consent in NSW?

Since 2003, the NSW age of consent is 16 for everyone, regardless of the gender of either partner.

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Superannuation

How do I prove my relationship for superannuation?

The main reason you would need to prove your relationship for superannuation would be if one of you died. Death benefits are usually sizable, and if they are passed directly to an eligible dependant they will incur a lot less tax than if they go to beneficiaries after passing through the deceased’s estate.

The problem with super is that proving you are in a de facto relationship is not enough. While heterosexual de factos and married couples are presumed by the legislation to be dependants, same-sex couples have to prove that they are in an “interdependent relationship”. This means demonstrating that one or both parties provided the other with “financial support” and “domestic support and personal care”. In earlier cases on other laws with the same wording, courts have interpreted “personal care” very narrowly as requiring bodily assistance such as with mobility, such that it would only really cover a relationship in which one partner was disabled, incapacitated or regularly ill. However it looks as though the “person care” provision will broaden - in some recent tax rulings on the super provisions, helping to lift heavy shopping was sufficient to qualify as “personal care”.

To protect your relationships, list your partner as your beneficiary in your super fund, keep evidence of interdependence, and also write a will in which you specifically leave any super benefits to your partner. That way your partner should be able to receive the benefits, either directly from the fund, or at worst through your will at a higher tax rate.

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Migration

Both I and my same-sex partner want to migrate from our home country to Australia. Can we do this together as a couple under the skilled migration program?

Australia does allow a same-sex partner to apply to accompany the primary applicant under only one category of skilled migrant visa. From 1 July 2006, the Temporary Business (Long Stay) Visa (subclass 457) permits the "independent partner" of a person to accompany the primary visa holder. But this visa is only for a maximum of 4 years and requires the primary holder to be sponsored by an employer – i.e. already have a job here. For any other category of skilled migrant visa you would both need to apply separately.

Although the Minister for Immigration has said that she will broaden the categories of visa open to interdependent partners it is not clear when this will happen.

The only other category of visa that allows for “interdependent partners” is family sponsorship; this means that one partner has to be an Australian citizen or permanent resident.

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