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What the “Yes vote” means for Family Law?

As anticipated the “yes” vote has prevailed.  What does that mean from a family law perspective?  Nothing until the Government passes legislation consistent with the “yes” vote.  If that occurs then same sex couples can marry and if their relationships subsequently  breaks down then they fall within the provisions of the Family Law Act 1975 (the Act), that deal with married parties.

Does this give same sex couples  more legal rights than what they currently have?  Yes and No.

With property settlement matters, prima facie the answer is  no if they are deemed to be in a de facto relationship under the Act. The de facto provisions in the Act essentially provide mirror provisions to the marriage provisions. There are a number of indicia to determine whether parties are deemed to be in a de facto relationship. However I do not intend to address the determination of a de facto relationship in this short blog. That can be a difficult and controversial process where a matrix of facts in dispute may need to be assessed and adjudicated on.  However, prima facie a de facto same sex  relationship will be held to exist if the parties have lived together for over two years in a committed domestic relationship. The relationship can be less than two years if it can be shown significant intermingling of finances between the parties and or there is a child of the relationship.

As noted above, a discussion on how to prove a de facto relationship is a topic in itself which I will address in a separate article.  The de facto provisions in the Act similarly apply to parties who are not of the same sex but choose not to marry.

If the same sex marriage legislation is passed then same sex couples who marry  do not have to prove they are in a de facto relationship to fall within the jurisdiction of the Family Court and Federal Circuit Court. This in itself is an advantage to same sex couples because as noted above the existence of a de facto relationship is a question of fact and can be hotly disputed. As a consequence unlike de facto couples,  they do not have to have previously cohabited for a period of time, ie prima facie two years with some exceptions, to fall within the jurisdiction of the Act.  Like heterosexual married couples, once they marry that is proof of the relationship. A period of cohabitation prior to marriage is not necessary

With parenting matters there will not be much change. The parenting legislation in the Act applies to all parents, same sex or not. The focus of the Act when dealing with children  is on the child and not the parents.

However, it is anticipated if the marriage equality laws are passed,  there will be less disputes with respect to parentage if same sex female couples who marry decide to have children through artificial conception procedures as opposed to having the same procedure whilst in an alleged, open for dispute,  de facto relationship.

As noted above, currently the de facto provisions only apply to same sex couples. Section 60H is applicable to same sex female  de facto relationships who decide to have a child through artificial conception procedures.  Under that section the parent who gives birth to the child, the birth mother,  is deemed to be a parent but the other party must prove they were in a de facto relationship with the birth mother at the time of conception to be  deemed an intended parent as well. This provision was included in the Act to, amongst other things, address situations where one of the de facto couples undertook artificial conception procedures and gave birth to a child and the other party to the relationship had no involvement in the conception process but was a supportive and loving partner of the birth mother. It also ensures that if a person other than the birth mother and the other intended parent provides genetic material, the child is not a child of that person. For example an anonymous sperm donor to the artificial conception procedure will not have parental rights.

I was involved in a case that went to appeal that dealt with section 60H, Clarence & Crisp [2016] FamCAFC 157 (18 August 2016)  http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2015/964.html?context=0;query=crisp%20and% . In that matter my client was in a same sex female relationship and she was successful in having her name recorded on the child’s  birth certificate and was ordered to have equal shared parental responsibility with the other party. These orders were made even though my client did not give birth to the child. My client alleged there was a de facto relationship. The other party agreed there was a de facto relationship for some years but it had broken down prior to the conception of the child. My client’s matter had a unique set of facts because she provided her embryos to the birth mother so she in fact had the genetic link to the child which the birth mother didn’t. Previous s60H cases did not deal with those unique factual circumstances. The birth mother in those cases conceived with their own eggs.   However, despite my client’s genetic link to the child she still had to prove pursuant to s60H that she was in a de facto relationship at conception for her to be deemed a parent. The trial Judge found this to be the case and this was upheld at Appeal. However given the unique set of facts, if the trial Judge did not find a de facto relationship , other legal arguments were made at trial  on behalf of my client  as to why she should be deemed a parent in any event because she provided the embryos. However because the trial judge held there was a de facto relationship  at the time of conception and s60H applied,  the other legal arguments which would have created new law, if accepted, became superfluous.

Section 60H will remain relevant with respect to de facto matters because not all same sex female couples will decide to marry . However if the same sex couples marry and have children through artificial conception procedures, the same section , s60H, applies. But the big advantage is that they will no longer have to prove the existence of a relationship which can be difficult when there is a matrix of facts in dispute, like the de facto matter I was involved in which I refer to above.  Instead if  the parties were married at the date of conception then the child would be deemed a child of both the birth mother and her same sex wife.

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