This chapter looks at the law related to same-sex and de facto families. There have been several major changes to the Victorian and Commonwealth law over the past 14 years. These changes are described below.
More inclusive definitions
While it is still in common usage, the legal term ‘de facto relationship’ – which was previously used to distinguish unmarried heterosexual couples from married couples – was replaced by the legal term ‘domestic relationship’, to include couples in a relationship regardless of gender. The main purpose of this change was to remove discrimination and to bring the status of same-sex relationships more in line with those of unmarried heterosexual relationships.
In 2008 and 2009, many Commonwealth laws were amended to recognise same-sex relationships and parenting and to remove existing discrimination. The amended Acts Interpretation Act 1901 (Cth) introduced a new definition of ‘de facto partner’ that relies on the relationship status irrespective of gender.
There are two circumstances that satisfy the Commonwealth definition of de facto relationship:
- if the relationship is registered under a prescribed state or territory law (e.g. the Victorian registration scheme); or
- the relationship is characterised by a set of factors such as duration, sexual relationship, common residence, care and support of children and financial inter-dependence, etc.
Parenting and children
At a state level in relation to parenting and children, in December 2008, Victoria passed the Assisted Reproductive Treatment Act 2008 (Vic) (‘ART Act’). The ART Act removed discrimination in relation to accessing in-vitro fertilisation (IVF) and artificial insemination (AI) services and secured the legal status of children with same-sex parents. In particular, the ART Act replaced the Infertility Treatment Act 1995 (Vic) and amended both the Status of Children Act 1974 (Vic) (‘SoC Act’) and the Births, Deaths and Marriages Registration Act 1996 (Vic) (‘BDMR Act’).
Also, from 1 January 2013, amendments to the Paid Parental Leave Act 2010 (Cth) introduced Partner Pay under the Australian Government’s Paid Parental Leave scheme. As a result, eligible partners (including adopting parents and same-sex partners) who care for a child born or adopted after this date are entitled to receive up to two weeks of government-funded payments at the national minimum wage rate.
Due to the implications of the COVID-19 pandemic, the Social Services and Other Legislation Amendment (Coronavirus and Other Measures) Act 2020 (Cth) was introduced; one of the amendments in this Act relates to Partner Pay eligibility requirements for those who may be ‘COVID-19 affected claimants’.
In December 2015, the Victorian Government passed the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) to allow same-sex couples to adopt children.