Introduction to key legislation and recent reforms

28 Jan

This chapter looks at the law related to same-sex and de facto families. There have been some major changes to the Victorian and Commonwealth law over the past several years.

In 2008 and 2009, many Commonwealth laws were amended to recognise same-sex relationships and parenting, and to remove existing discrimination. These amendments were part of a broader effort to ensure equality in the legal treatment of relationships.
Recent years have seen greater recognition and legal acknowledgment of diverse relationships, such as de facto partnerships, same-sex relationships, and other non-traditional family structures. These changes are part of a broader effort to ensure equality in the legal treatment of all relationship types.
The term de facto relationship, defined in section 2F of the Acts Interpretation Act 1901 (Cth), which applies equally to same-sex and heterosexual couples, is as follows:
1. For the purposes of paragraph 2D(b), a person is in a de facto relationship with another person if the persons:
  a. are not legally married to each other; and
  b. are not related by family (see s 6); and
  c. have a relationship as a couple living together on a genuine domestic basis.
The court also considers all circumstances of the relationship including, but not limited to: duration, sexual nature of relationship, financial interdependence, common residence, care of children and reputation and public aspects of the relationship.
These criteria ensure that de facto relationships, regardless of gender, are recognised for legal purposes.
The amended Assisted Reproductive Treatment Act 2008 (Vic) (‘ART Act’), replacing the Infertility Act 1995 (Vic) promotes equality across genders and relationship statuses by affirming access to in vitro fertilisation (IVF) and artificial insemination (AI) services for both same-sex and heterosexual couples.
Also, the 2013 amendments to the Paid Parental Leave Act 2010 (Cth) introduced Partner Pay under the Australian Government Paid Parental Leave Scheme allowed 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.
Further inclusive amendments include in Victoria, the passing of the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) in 2015 which allows same-sex couples to adopt children.