Investigate the legal recognition of relationships, including marriage, de facto relationships, civil unions, and same-sex relationships

What this dot point is asking

NESA wants you to know the legal forms relationships can take in Australia, the statutes that recognise them, and how recognition has changed. Expect a 5-7 mark short or extended response.

The answer

Marriage

Marriage in Australia is regulated by the Marriage Act 1961 (Cth). The current definition (Marriage Act 1961 (Cth) s 5(1) as amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)) is:

the union of 2 people to the exclusion of all others, voluntarily entered into for life.

Key requirements:

• both parties must be at least 18 (with a court order for 16 to 17-year-olds in limited circumstances under s 12);
• both parties must consent (forced marriage is a Commonwealth offence under the Criminal Code Act 1995 (Cth) s 270.7B);
• the parties must not be in a prohibited relationship (s 23B);
• the marriage must be solemnised by an authorised celebrant.

The 2017 marriage equality reform

Before December 2017, marriage was defined as the union of a man and a woman, following the Marriage Amendment Act 2004 (Cth), which inserted that definition to forestall same-sex marriage recognition.

The Australian Marriage Law Postal Survey (September to November 2017) returned a Yes vote of 61.6 percent on a 79.5 percent participation rate. Parliament then passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), which removed the gendered definition and recognised same-sex marriage from 9 December 2017.

De facto relationships

A de facto relationship under the Family Law Act 1975 (Cth) s 4AA exists where two people who are not married and not related by family are in a relationship as a couple living together on a genuine domestic basis. The court considers the circumstances of the relationship, including duration, sexual relationship, financial dependence, ownership of property and care of children.

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) extended Family Law Act 1975 (Cth) property and maintenance jurisdiction to de facto couples (same-sex or opposite-sex) following referrals of state legislative power, save Western Australia.

The de facto provisions apply if the relationship lasted at least two years, or if there is a child of the relationship, or if there were significant contributions and serious injustice would result from non-recognition (s 90SB).

NSW Relationships Register

The Relationships Register Act 2010 (NSW) created a register of relationships. Registration provides prima facie evidence of a de facto relationship for the purposes of NSW law and federal law that recognises state registers.

Civil unions

Several states (Victoria, ACT, Queensland) have civil union or registered relationship schemes. The Civil Unions Act 2006 (ACT) was overridden by Commonwealth legislation (the Marriage (Section 5A) Determination 2004 (Cth) and subsequent disallowance), and the ACT's Marriage Equality (Same Sex) Act 2013 (ACT) was struck down by the High Court in Commonwealth v Australian Capital Territory (2013) 250 CLR 441 on the grounds of inconsistency with the Marriage Act 1961 (Cth) under s 109 of the Constitution.

Forced marriage

Forced marriage was criminalised by the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth), inserting the offences in Criminal Code Act 1995 (Cth) ss 270.7A and 270.7B. The maximum penalty for forced marriage involving a child victim is 9 years imprisonment.

Indigenous relationships

The Family Law Act 1975 (Cth) recognises that Aboriginal and Torres Strait Islander children may be raised within kinship networks. Section 60CC(3)(h) requires the court to consider any need to maintain a connection with the child's Aboriginal or Torres Strait Islander culture.