How are Same-Sex Couples Recognised in Australian law?

by The FindLaw Team

Australia may not extend marriage and adoption rights to same-sex couples, however, under the numerous State and Federal laws,  a couple who is in a same-sex relationship for all intents and purposes have the same rights as those who are in a legally recognised marriage. Whether it is property, parental or estate rights, individuals whom are in a committed, intimate relationship are protected in Australian law.

Victoria’s Statute Law Amendment (Relationships) Act encapsulates the statutory in recognising the equal status of same-sex couples which is reflected in the purpose and object of the Act:

(2) The object of this Act is to recognise the rights and obligations of partners in domestic relationships where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner.

(3) It is a further object of this Act to prevent discrimination under legislation specified in the Schedules by ensuring that all couples irrespective of gender have the same rights and obligations while at the same time recognising the importance of a commitment to a long term relationship and the security of children.

State and Federal laws are also blind to the gender of a couple, only making reference to two individuals who are in a committed relationship. Although, it should be noted that in the New South Wales Property (Relationships) Act, reference is made to two adults, whilst in the Commonwealth Act, there is no division made between an adult or juvenile coupling. 

Both State and Federal laws have categorically recognised the rights of individuals in same-sex relationships. A good example of how same-sex relationships have been recognised in Australia is by looking at the construction of s 4AA(2) of the Commonwealth Family Law Act and s 4(2) of the Property (Relationships) Act in New South Wales which could be interchangeable with one another in the language used. In order for a couple who is in a same-sex relationship to prove they are legal de facto relationship, the following factors must be taken into account:

  •  the length of the relationship
  •  the nature and extent of common residence
  •  the existence of a sexual relationship
  •  the dependence, interdependence, and any arrangements for financial support
  •  the ownership, acquisition, and use of property 
  •  the degree of a mutual commitment to a shared life
  •  the care and support of children the performance of household duties
  •  the reputation and public aspects of the relationship.

Same-sex relationships may also be legally registered in the States as evidence that a couple is in a committed relationship, although this is not mandatory. In both State and Federal law, proving a couple is in a de facto relationship is dependent on a number of factors, which may include the opening of joint bank accounts, purchasing property together, photographs, recognising each other as the next of kin, or listing the person as an emergency contact.   



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