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Legal Protection for Same-Sex Relationships: What are the Options?Amelia Higgs Posted 8 June 2017
Same-sex marriage is currently not available in Australia. While this may change in the near future, in the meantime it’s important that same-sex couples are aware of the current options available to ensure that their relationship is protected and recognised as much as possible. This article is not intended to suggest that these options are a suitable substitute for the recognition afforded by marriage. However, there will be circumstances during the life of a relationship in which, if these options have been utilized, couples will be spared the pain, expense, and red tape of having to prove the existence of their relationship. This is particularly important in the context of illness, incapacity, or death; when the recognition of a relationship can have a pivotal impact upon the outcome. The discussion in this article focuses largely on the options available in Tasmania; however equivalent schemes are available in the other States and Territories.
The majority of Australian states now have laws which enable non-married people to register their relationships, whether they be same-sex or opposite-sex.
While the terminology and the mechanism for formalizing the relationship differ slightly from State to State, the effect is essentially the same in that once a relationship is registered, it is presumed to exist without the need to prove additional factors.
Same-sex relationships can be registered in Queensland, New South Wales, the ACT, Victoria and Tasmania. In Tasmania, the law automatically recognises relationships which have been registered under the equivalent interstate schemes, and also relationships which have been solemnised as marriages in other countries (1). Many countries which offer civil unions (2), such as the United Kingdom, automatically recognise same-sex relationships which have been registered under Australian State law.
While the legal advantages of relationship registration are fairly far-reaching, a particularly important benefit is the recognition of partners as being each others’ spouses. Most legislation gives precedence to the spousal relationship over other relationships (such as parent/child) in the hierarchy of determining who a person’s next of kin is. This has application in a number of contexts, such as illness (rights to hospital visits, giving consent to medical treatment (3), release of medical information (4)) and death (release of a body (5), claim for maintenance against an estate (6)).
It is important to note that apart from Tasmania, the other Australian states do not currently have mutual recognition schemes. Therefore, for example, if a couple who have registered their relationship in Tasmania relocate to New South Wales, they must re-register their relationship under the New South Wales scheme in order for it to be recognised there.
When a relationship is not registered, it may still be a significant relationship (7) provided that it meets the criteria set out in section 4 of the Relationships Act. If a relationship is a significant relationship, then the people in that relationship are considered to be each others’ spouses. The difficulty with this is that if there is a dispute as to the existence of a relationship during times of emergency (for example, if there are unsupportive family members who do not recognise the existence of the relationship), the time it takes to prove the existence of a relationship will almost certainly be greater than the timeframe in which a decision by the next of kin is required.
A Guardian has responsibility for making decisions relating to the appointing person’s health, care and welfare when that person lacks the capacity to do so themselves (8). Any adult can be appointed as a Guardian, provided that the nominated person accepts the appointment. Guardianships can be enduring (permanent unless revoked), or limited (for a certain timeframe or only in relation to certain types of decisions). It is important to note that in Tasmania, the Guardianship and Administration Act creates a hierarchy to determine the person who is responsible for consenting to medical treatment in the event that a person lacks the capacity to give their own consent. In accordance with this hierarchy, a person who has been appointed as a Guardian takes precedence over a spouse. A spouse will only be given the responsibility for medical consent if there is no Guardian (9). In other words, if a person has appointed someone other than his or her spouse to be Guardian, the appointed person’s decisions will override that of the spouse. By appointing each other as Guardians, same-sex couples can ensure that their partners will be responsible for consenting to medical treatment and other related matters such as palliative care arrangements. However, Guardianship is not an all-encompassing protection and will not afford automatic recognition of the same-sex relationship for other circumstances where next-of-kin or spousal status may be required.
Power of Attorney
Similar to Guardianship, a Power of Attorney gives the appointed person the responsibility for making decisions in relation to the appointor’s finances and business decisions (10). This can include access to bank funds, payment of bills and debts, signing documents, operating a business, and so on. In many ways, this power has been diminished by the convenience afforded by the internet (in that Powers of Attorney were often used when the appointee was going overseas and was unable to take care of their affairs at home), however it still has important application when the appointee temporarily or permanently loses the ability to carry out these tasks on their own.
An Attorney must exercise his or her responsibilities in accordance with the appointor’s best interests or expressed wishes. As with Guardianship, a Power of Attorney can be enduring or temporary, and can have limitations attached to the powers to be exercised.
Each of these measures is formalized through registration with the relevant government bodies. A quick internet search will equip any interested parties with the basic information required to complete the registration process. However, it is important to ensure that the documentation for these processes is completed correctly to avoid delays, rejections or additional fees. It is highly recommended that parties who are considering implementing these measures obtain legal advice from a family lawyer and/or estate planning lawyer before undertaking the registration process. Couples may also wish to obtain legal advice in relation to other legal protections which compliment these options, such as binding financial agreements, death benefit nominations, and wills.
(1) Relationships Act 2003 (Tas) section 65A
(2) As distinct from same-sex marriage
(3) Guardianship and Administration Act 1995 (Tas) s 39.
(4) Privacy Act 1988 (Cth) s16B(5)
(5) Coroners Act 1995 (Tas) section 3
(6) Testator’s Family Maintenance Act 1912 (Tas) section 3
(7) Relationships Act 2003 (Tas) s4.
(8) Guardianship and Administration Act 1995 (Tas) ss 25 and 26
(9) Guardianship and Administration Act 1995 (Tas) s 39; Guardianship Act 1987 (NSW) s 33A
(10) Power of Attorney Act 2000 (Tas) s 20.
Meet Amelia Higgs
Amelia Higgs is a family lawyer based in Hobart, Tasmania. Her areas of practice in relation to both same-sex and opposite sex relationships include parenting disputes, property settlements, surrogacy arrangements, and financial agreements. Prior to being admitted to practise, she was a Research Fellow at the Tasmania Law Reform Institute and published an issues paper on “The Legal Issues Relating to Same-Sex Marriage”.
For those seeking more information in relation to this article or family law matters generally, Amelia can be contacted by email or by telephone.
T. +61 3 6210 0004