By Andy Park
The Federal opposition's hints at reviving civil unions have no constitutional power, says a leading family law expert.
On Thursday (September 20), chief opposition whip Warren Entsch threatened to dust off a previously drafted civil partnership bill after the Senate rejected a bill to legalise same-sex marriage, mirroring the result in the lower house earlier this week.
Professor Patrick Parkinson is a family law expert at Sydney University's Faculty of Law and says the Federal government has now power on such matters.
“There is no constitutional power for the Federal government to pass laws on civil unions, it's a matter for the states,” he told SBS.
“The states referred their powers over the property division and maintenance of de factos and laws where passed in 2008 that gave effect to that, but if what he is producing is a straight civil union bill, [there's] no constitutional power,” he said.
RELATIONSHIPS AND THE LAW: QUICK FACTS
• The Marriage Act 1961 does not allow for same-sex couples to marry, same-sex marriages entered into under the laws of another country are also not recognised.
• Post-operative transsexuals who have legally changed their gender can legally marry as man and woman.
• Marriage celebrants must have a recognized religious affiliation, the full list can be found at here.
WAINING NUMBERS OF SAME-SEX COMMITMENTS CEREMONIES
A second such defeat of a same-sex marriage bill has disappointed some, like civil celebrant Sarah Cummings.
She is a celebrant with Engage Celebrants, who practice a young and contemporary type of celebrancy, for marriages and commitment ceremonies.
“Over the last 18 months we have seen a drop off in commitment ceremonies as people generally expect a change soon in laws towards marriage equality,” she said.
DE FACTO: A LAWYERS PICNIC
Professor Parkinson said that applying law to de facto couples, same sex or otherwise, was “extraordinary discretionary.”
“It's lawyers' picnic,” he said.
“The definition of a de facto relationship is extraordinary broad and vague,”
“The law has gotten into a terrible mess by trying to give legal effects equivalent to marriage to relationships which are informal, of which there are no record and of which the man and the woman, or same sex couple concerned, may have different views about what their relationship means,” he said.
But in comparison to married status couples, he said there are almost no legal differences.
“Basically, it is almost impossible to find anywhere in state of Federal law, any difference between marriage and de facto relations, except for the need to get divorced, so the right to marriage is the right to get divorced,”
For Ms Cummings, who said an update to the pamphlet that the Attorney General's Office demands celebrants hand to couples, “Happily Ever…Before and After,” couldn't come soon enough.
WHAT CONSTITUTES A DE FACTO RELATIONSHIP?
Two people who are not married or related by family have as a couple living together on a 'genuine domestic basis'.
It can exist between 2 people of the opposite sex, or between 2 people of the same sex.
All the circumstances of the relationship will determine whether a couple have a de facto relationship. These include:
• the duration of their relationship
• the nature and extent of their common residence
• whether a sexual relationship exists
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them
• the ownership, use and acquisition of their property
• their degree of mutual commitment to a shared life
• whether the relationship has been registered, in a State or Territory with laws for the registration of relationships
• the care and support of children, and
• the reputation and public aspects of their relationship.
WHAT DO THE NEW DE FACTO LAWS MEAN?
- New commonwealth de facto laws that apply to same-sex and heterosexual couples and apply everywhere except WA provide for de facto couples, when they separate, to obtain property settlements on the principles that apply under the Family Law Act 1975 to married couples.
The Family Law Courts can make these orders if satisfied of one of the following:
• the de facto relationship is at least two years
• there is a child of the de facto relationship
• one of the partners made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made, or
• the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.
• All applications must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.
• Superannuation that each partner has can also be split (married couples have been able to split superannuation since 2002).
More information can be found here:
