The Issue of Legal Recognition of Same-Sex Marriages in Australia - Case Study Example

Legal Recognition of Same-sex Relationships Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Name Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Course Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Instructor Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Date Introduction For more than two decades now, the issue of legal recognition of same sex relationships and marriages has garnered a lot of attention around the entire globe. The substantive discussion has been whether it is socially acceptable to permit same sex couples into formalising their relationships to become recognized marriages (Boele-Woelki 2008, p 11). The issue has become even more debatable and disputable following the emergence of human rights activists who advocate for the rights to respect for private life of persons as underlying human autonomy and human freedom. They justify the legal recognition of same sex marriages as envisaging the very essence of human rights as provided by almost all constitutions around the world(Boele-Woelki 2008, p 12). . For instance, the European Court of Human Rights (ECHR) accepts that sexual freedom and sexual autonomy is core and central to the private life of a person and considers it a violation of a person’s fundamental rights if they are discriminated on the basis of their sexual orientation(Anthony & Drabsch 2006. P 1) . Generally legal recognition of same-sex relationships is a global issue characterised by strong opinions, compounded by a lack of consensus not only within the global society but even among the same-sex community itself (Anthony & Drabsch 2006. P 1). This paper will explore the issue of legal recognition of same sex marriages in Australia and particularly focusing on the New South Wales (NSW). Discussion The legal recognition of same-sex relationships as earlier stated is a topic characterized by various dissenting views. For in the last twenty years or so, the debate concerning the same issue has dramatically increased in the NSW just like anywhere else in the world. It has even reached to a point where most jurisdictions in the Australian continent provide for the same-sex couples with the same freedoms, rights and obligations just like the couples in heterosexual arrangements(Anthony & Drabsch 2006. P 1) . Even so, the extent to which same-sex relationships should be recognized and protected by law continues to elicit a lot of discussion and debate(Anthony & Drabsch 2006. P 7). There are legal questions that arise when it comes to the enforcement of such marriages. Most questions regard the most appropriate avenues for recognition, whether it should be by de facto, by registration, civil unions or formalized marriages(Anthony & Drabsch 2006. P 9). It also gives rise to complications such as the traditional and legal concepts of the terms such as “marriage”, “spouse”, “family” and “parent” (Boele-Woelki 2008, p 11). . The questions of same sex relationships are posited against a background that has been characterised by rapid social change. Social change has been massively witnessed by issues such as increasing rates of divorce, many people opting not to marry leading to a decline in the number of marriages and the greater acceptance of same sex marriages(Boele-Woelki 2008, p 11) just but to mention a few. The issue does not only centre on the Federal Government. Same sex relationships give rise to a diverse range of other family forms which range outside the existing model of a traditional nuclear family. Thus, governments, not only in the NSW but around the world at large are faced with the challenges of legislating rules that will give recognition to such family groups (Griffith 2011). The most crucial part is finding a balance between the arising issues of justice to all and the dissenting societal norms and attitudes. According to Sarantakos, gays and lesbians who cohabit find it rather difficult not because they cannot marry but because they are not legally recognized(Sarantakos 1992, as cited in Griffith 2011). .With much focus on the NSW, the debate on same-sex relationships first came to the forefront when the Civil Unions Act of 2006 was passed through the ACT Legislative Assembly on 11 May 2006. This act was very liberal and allowed same-sex couples to freely participate in a civil union ceremony in order to legally formalise their relationship. However, this was opposed by the Federal Government which made it clear that marriage celebrants who had been licensed under the Marriages Act of 1961 will not be allowed to conduct civil unions’ ceremonies(Griffith 2011).. The area of contention was that the Marriages Act of 1961 defined a marriage as “the union between a man and a woman to the exclusion of all others”, which was entered into voluntarily and was to last for a lifetime1. In the NSW, the legal recognition of same-sex relationships has been entrenched in a number of provisions. First and foremost, there is the recognition of the de facto relationship which is defined traditionally as the relationship between a man and a woman, even though not legally married live together on a genuine domestic basis and are recognized as husband and wife (Anthony & Drabsch 2006. P 11) . This relationship does not require any type of formal registration. The NSW, Victoria, Queensland and other parts of the Australian continent have adopted a wider and broader definition of a de facto relationship to include a relationship between any two people irrespective of their gender or sex (Anthony & Drabsch 2006. P 11). This is an example of a presumptive system which has given legal recognition of de facto relationships to include same-sex relationships(Boele-Woelki 2008, p 11).. The relationships are recognized since the parties could easily sign cohabitation agreements. It is a big factor contributing to the declining number of heterosexual couples(Griffith 2011).. One other way through which same sex relationships are recognized is by registered partnerships or civil unions (Babst, Gill & Perceson 2009, p 15). These are also called the opt-in models and require the partners to take some official steps into ascertaining that their relationship has been legally recognized. For instance, it may include signing a declaration that is lodged at local court or at the registrar of marriages(Babst, Gill & Perceson 2009, p 15).. This system may grant the homo-sexual partners the same rights as those of recognized hetero-sexual partners. As such, the parties to such a civil union have the same benefits, responsibilities, rights, duties and obligations under the law as an ordinary marriage consisting of a husband and wife(Babst, Gill & Perceson 2009, p 19).. The legal recognition of same sex relationships in the New South Wales has a long record in history. In 1982 for instance, part 4C was inserted into the Anti-Discrimination Act of 1977 and was aimed at prohibiting any form of discrimination on the grounds of homosexuality(Babst, Gill & Perceson 2009, p 15). In the NSW Law Reform Commission published Report 36 of 1983, the scope of the report was restricted to heterosexual de facto relationships and it was recommended that this provision be amended in order to include the property interests of any de facto couples (Anthony & Drabsch 2006, p 33). More recommendations continued to be passed and in 1993, the Gay and Lesbians Rights Lobby published an article known as The Bride Wore Pink advocated for the rights of the lesbians and the gay people. It also recommended that the definition of de facto relationships was not adequate and that it needed to be widened to include same-sex relationships (Boele-Woelki & Fuchs 2012, p 13). A major landmark change was noted in 1999 when the Property(Relationships) Legislation Amendment Act of 1999 was passed and assented to. In this one, same-sex couples were included in the definition of de facto relationships. Indeed, the New South Wales was the first state in Australia to reform existing laws and adopt new laws that legally recognized same-sex relationships(Boele-Woelki & Fuchs 2012, p 22).. Hence a lot of laws were amended including property laws, family laws, intestacy provisions, stamp duty laws, accident compensation laws and consent laws regarding illness and after death(Boele-Woelki & Fuchs 2012, p 22). just but to mention a few. The changes were considered major human rights reform which introduces sweeping changes to the rights, freedoms and the status of any cohabiting same-sex persons(Boele-Woelki & Fuchs 2012, p 13).. They nationally affected gay men and lesbian girls in almost every aspect of their lives. In the year 2002, a Miscellaneous Act Amendment(Relationships) Act of 2002 amended a total of twenty laws in the New South Wales which had the effect of including same-sex couples in the scope and definition of de facto relationships. Accordingly, in 2005, a notice of motion seeking leave to introduce a Same-Sex Marriage Bill was introduced in parliament but time lapsed when parliament went for prorogation. Three other bills, The Same-Sex Marriage Bill 2006, Same-Sex Marriage (Dissolution and Annulment) Bill 2006 and Same-Sex Marriage (Celebrant and Registration) Bill 2006 were reintroduced and passed. Notably, the recognition of same sex marriages in the NSW has taken ground. Discrimination on the grounds of homosexuality is totally prohibited (Anthony & Drabsch 2006. P 17). Discrimination on the ground of homosexuality occurs when one person treats the other less favourably than they would treat a person who according to them is not homosexual(Anthony & Drabsch 2006. P 17).. Alternatively, being made to comply with an unreasonable requirement on the grounds of homosexuality is also prohibited. The discrimination is also prohibited in all areas of education, learning, work, in provision of goods and services including accommodation services (Anthony & Drabsch 2006. P 17). Laws have also been amended over time to confer new rights, duties and responsibilities to partners who are in same-sex relationships. The rights are wide and varied. They include rights such as property rights, illness and incapacity rights, inheritance rights, accident compensation rights and life pension rights(Anthony & Drabsch 2006. P 23).. Moreover, same sex relationships in the NSW are concluded based on presumption. This means that no formal steps are taken into ensuring that the relationship is legally recognized. Since ages, they have been placed under de facto relationships of which are defined to mean any relationship between two adult persons living together as a couple and not necessarily married or related by family(Anthony & Drabsch 2006. P.18). Most of these same-sex relationships are typically designed by some factors. They include elements such as the duration of the relationship, the nature and extent of cohabiting together, whether there is existence of a sexual relationship, the degree of financial interdependence, ownership, use and acquisition of property, whether there is any mutual commitment of a shared life as well as the presence and sport of any children(Anthony & Drabsch 2006. P 18). The rest include the performance of household duties and the reputation and the public perception of the relationship (Anthony & Drabsch 2006. P 18). Nevertheless, there are also provisions in the New South Wales laws that allow same-sex couples to make a written declaration that they are mutually committed to sharing their lives as a couple (Anthony & Drabsch 2006. p 18). Almost all current state laws give gay and lesbian couples the right to marry together with full equality rights in the eyes of the law. All family issues are covered including parenting issues, matters relating to adoption, and agreements to parent out of artificial or medically assisted reproduction (Boele-Woelki 2008, p 12). . Key issues of social justice arising out of this are wide varied. They include the right to equality which entails equal treatment before the law, freedom of association, the right to a family (State by State 2011). Basically, homosexual couples assert that all state laws should guarantee them rights equal and just without discriminating them on the basis of their sexual orientation. That justice could only be achieved if they are guaranteed equal constitutional rights and are fully protected from the discriminatory laws (Cossman 1992). The fight to recognize same-sex relationships still goes on. Even though, they still suffer discrimination in many areas of their encounter on a daily basis. Much of this discrimination is faced in areas such as taxation, immigration, superannuation and even in social security offices (Anthony & Drabsch 2006. P 19). Related to family matters for instance, same-sex couples are treated very differently from heterosexual couples when it comes to the issue of adoption. Generally, same-sex couples cannot a lodge an application order for adoption because they do not qualify (Anthony & Drabsch 2006. P 17). Even though recommendations have been lodged calling for reform in this area, the legislature is yet to implement them (Boele-Woelki 2008, p 12). . Conclusion For more than two decades now, the issue of legal recognition of same sex relationships and marriages has garnered a lot of attention around the entire globe. The last decade particularly has seen substantial changes of this aspect in Australia. Many anti-discriminatory laws on the basis of homosexuality have been defined. In the New South Wales, most questions regard the most appropriate avenues for recognition, whether it should be by de facto, by registration, civil unions or formalized marriages (Anthony & Drabsch 2006. P 9). Its legal recognition has been entrenched in a number of provisions as discussed above. Most of these same-sex relationships are typically designed by some factors including elements such as the duration of the relationship, the nature and extent of cohabitation the existence of a sexual relationship, the degree of financial interdependence, ownership, utilization and possession of property among others. Key issues of social justice include the right to equality which entails equal treatment before the law, freedom of association, the right to a family. Even though discrimination is encountered on a daily basis the fight to recognize same-sex relationships still goes on. It is expected that eventually, same-sex marriages will formally be recognized as legal and binding. 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