Legal Recognition Of Same Sex Relationships example essay topic

Lord Penzance defined marriage in the case of Hyde vs. Hyde and Woodman see (1986) LR 1 P. &D. 130 when he started 'I conceive marriage, as understood in Christendom, may be defined as the voluntary union for life of one man and one woman, to the exclusion of others'. It has been confide both in section 46 (1) of the Marriage Act and section 43 (a) of the Family Law Act. Marriage is therefore defined as 'the union of a man and a women'. Consequently same sex couples are not able to legally marry under Australian law.

However in 1984 the legal system acknowledged that relationships outside of the traditional or legal form of marriage did exist. The De facto Relationships Act 1984 (NSW) provided protection and recognition for such alternative relationships involving people of the opposite sex. Where previously homosexual relationships are illegal under the law, as was homosexual intercourse. In section 4 of the Property (Relationships) Act 1984 defines a de facto relationship as a relationship between two adult persons who live together as a couple, and who are not married to one another or related by family. Because this does not state men and women homosexual couples are legally recognised in NSW under this law. The move toward legal recognition of the same sex relationships gained greater force with the Property (Relationships) Legislation Amendment Act 1999 (NSW) providing protection to people in the same sex de facto relationships in a wide range of situations such as property division, inheritance, joint financial arrangements and issues of illness or death of a partner.

The changes apply to couples that have lived together for more than two years. The changes give same sex couples the same rights afforded de facto couples under the De facto Relationships Act 1984 (NSW). It does not give same sex couples equal rights in all areas in the law that are given to married or heterosexual de facto couples. Same sex partnerships have no formal requirements in dissolution of the relationship. If the parties have been together for two years or more, property is divided according to the Property (Relationships) Act. Decisions are based on financial and non-financial contributions of spouses, also the length of the relationship and if it was sexual or platonic.

However, unlike other relationships the future needs of parties are not considered. The definition of family members in the Family Law Reform Act 1995 (cth) is very broad and includes anyone who has ever had a residence, contact or specific issues order or has ever lived with someone who is a member of the family. Family violence orders are those orders made under State legislation such as ADVO's to protect from family violence. Law reform in the area of domestic violence is continually under review, however the success of past law reform is difficult to judge due to the fact that so many domestic violence cases go unreported.

The Crimes Act 1900 (NSW) was amended to the Crimes Amendment (apprehended violence) Act 1999 (NSW) and provides protection for all involved in domestic violence regardless of sex or sexual orientation. An example of reform of domestic violence laws is the case R vs. McEwan 1996 where the victim used ' battered woman syndrome' as a defence for killing his homosexual partner. Men are now included in the definition of battered women syndrome. Since 1988 decisions about children from de facto are made the same way as for the marriage, i.e. via Family Law Act 1975 (Cth) and family law courts. Before then, these matters were decided by individual states. The Adoption of Children Act 1965 (NSW) allows married couples, heterosexual de facto couples and single people to adopt.

Same sex couples are not eligible to adopt as a couple. The Law Reform Commission has recommended that this be changed and that same sex couples be allowed to apply to adopt. At present same sex couples are not able to utilise birth technologies, however women have been known to travel to countries such as the U.S. for artificial insemination and in the case W vs. G 1994 a lesbian partner had to pay child maintenance to 2 artificial children her former partner gave birth whilst in a relationship together. This was under the under the Family Law Act 1975 (cth) In the best interest of child. The institution of marriage in modern Western society is generally regarded as extending only to male-female relationships, although most marriage statutes use gender-neutral language. Same-sex relationships, regardless of their duration are not legally recognised in most countries and, as a result, homosexual partners are denied many of the legal and economic privileges automatically bestowed by marital status.

Gay men and lesbians have traditionally faced extensive prejudice and discrimination. It has been said that "the experience of homophobia and heteros exist is inextricably a part of being gay, lesbian or bisexual in this country. To be gay, lesbian or bisexual is to be discriminated against, both by other individuals and by institutions. To be gay or lesbian is to be defined as 'other,' 'sick,' 'deviant,' 'abnormal,' 'criminal'". However very recently amendments have been made to lower the age of homosexual consent to 16 to parallel heterosexuals " The NSW upper house last night passed the Bill-which reduces the legal age of homosexual age from 18 to 16-with several major amendments.

The amendments have to be supported by the Legislative Assembly before they become law but this seems likely". (Minister accused in Gay Sex Bombshell, SMH, 28/5/03). This is one of the most recent changes to such legislation. This was a gesture of meeting equality regardless of sexual preference in heterosexual and homosexual relationships. Generally, it is more acceptable and respectable, and therefore much easier, to show sympathy or interest around health issues than around gay issues, which creates a great temptation for governments, policy makers and others to primarily talk about and address HIV issues and to incorporate gay issues within this, rather than talking about or addressing gay issues directly and in their own right.

The Commonwealth is also lagging behind other Australian and international jurisdictions. The Federal Government has yet to make any positive reforms in this area and in fact has demonstrated with the Sex Discrimination Amendment Bill (No 1) 2000 that it is prepared to increase the extent of legislative discrimination against people in same sex relationships. By comparison, other governments around the world, in countries as diverse as France, South Africa, Hungary, Iceland and the United States of America, to mention a few, have moved to enact legal recognition of same sex relationships..