RECOGNITION AND STATUS OF RELATIONSHIPS

There are many Acts of Parliament which refer to different types of relationships. Acts often have their own definitions of ‘spouse', ‘de facto spouse', ‘next of kin', or ‘dependant'.

These definitions are used to determine rights and responsibilities in areas like inheritance, workers compensation, superannuation, accident compensation, stamp duty liability and so on. The Victorian Statute Law Amendment (Relationships) Act 2001 and Statute Law Further Amendment (Relationships) Act 2001 replaced the concept of ‘de facto spouse' with the concept of ‘domestic partner' for both same-sex and heterosexual couples in most Victorian Acts. This recognises ‘the rights and responsibilities of partners in domestic relationships . . . irrespective of gender'. However same-sex relationships do not have the same legal or social recognition as other relationships in Victoria. The Victorian Gay and Lesbian Rights Lobby is actively campaigning for same-sex relationship recognition.

Spouse

‘Spouse' in most Victorian legislation is defined to be a legally married (heterosexual) spouse. If there is no definition in legislation, then the law assumes a spouse to be a legally married spouse. Same-sex couples cannot be legally married and federal legislation passed by the Howard Government in 2004 has made the definition of marriage under the Marriage Act 1961 (Cth) ‘the union of a man and a woman to the exclusion of all others...'

De facto spouse

Most definitions of de facto spouse refer to a man and woman living together on a ‘genuine domestic basis'. The term ‘de facto spouse' has been replaced in most Victorian Acts by the new term ‘domestic partner'.

Next of kin

Although ‘next of kin' is sometimes defined in legislation, it is a common law term which has traditionally meant the closest relative by blood or marriage.

The law reforms changed ‘next of kin' in the Coroner's Act 1985 (Vic) and the Human Tissue Act 1982 (Vic). A ‘domestic partner' has the same status as a spouse in the list of ‘senior next of kin' who can object to an autopsy or approve tissue donation from a dead person.

Whether or not your same-sex partner can be legally considered your next of kin, there is nothing to stop you naming them as your next of kin, if you are asked. For a discussion of next of kin status and medical treatment, see 'Health'.

DOMESTIC PARTNER - TWO TYPES

The new Act has created two definitions of ‘domestic partner' which apply to different areas of the law:

1. Living together

The first definition covers couples who live together ‘on a genuine domestic basis', regardless of gender. This is not limited to adults (people 18 years or older).

This definition has been used to establish the rights of same-sex couples in relation to inheritance, property division on relationship breakdown, compensation schemes, state superannuation schemes and discrimination.

In relation to inheritance on intestacy (see ‘Death and inheritance') and property division (see ‘Property'), there is the additional requirement that to be a ‘domestic partner' you have to have been living together for at least two years.

2. Not living together

The second definition covers couples where either or both partners provide ‘personal or financial commitment and support of a domestic nature for the material benefit of the other' - whether or not they live together, and regardless of gender.

To be a person's ‘domestic partner' under this definition, you must both be an adult.

This broader definition of domestic partner has been used in amending some health-related legislation, criminal law legislation and business and consumer legislation.

In practice, this will mean that if you live with your partner, you will probably have ‘domestic partner' rights under all laws mentioned. If you don't live together, then you may only have rights under the second definition.

Determining who is a domestic partner

If a decision ever needs to be made about whether you meet the legal definition of a ‘domestic partner', the relevant court or administrative body must take into account all the circumstances of your relationship, including any one or more of the following:

  • how long you have been in a relationship
  • if and how you live together and how long for
  • if you have a sexual relationship
  • if you depended on each financially other or not, and any arrangements for financial support between you
  • if you own property, how you got it, who contributed to it and how it is used
  • if you have a commitment to a shared life together
  • how you cared for and supported any children you have
  • how other people saw your relationship.

Someone who is paid to care for you and provide domestic support can't be your domestic partner, nor is someone who lives with you only because you are co-tenants.

You can support your claim to be in a domestic partnership by signing a statutory declaration with your partner. In the statutory declaration you should refer to all the above factors that are relevant to your relationship.

The statutory declaration is not a binding legal document, but it can provide evidence of your joint intentions and the state of your relationship. A court or administrative body could consider this if needed.

Which Definition of Domestic Partner Applies?

The Statute Law Amendment (Relationships) Act 2001 (Vic.) and the Statute Law Further Amendment Relationships Act 2001 (Vic.) introduced the term ‘domestic partner' into various Victorian Acts to recognise the rights and liabilities of partners in domestic relationships. The Acts amended are listed below. In these, the term ‘partner' is defined as a ‘spouse' OR a ‘domestic partner'. ‘Spouse' is defined as a party to a marriage.

The amending Acts use two definitions of ‘domestic partner' (described as A and B below); definition B varies slightly in relation to the Property Law Act and the Administration and Probate Act. This table shows which Acts have been amended and which broad definition of domestic partner applies.

The following is a guide only. For the specific wording of the definition which applies and for the effect of the amendments, consult each Act and the amending Act.

A. Domestic partner-whether living together or not:

An adult person* to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof. It does not include a person who provides domestic support and personal care to the person for fee or reward or on behalf of another person or an organisation.

Acts amended by Statute Law Amendment (Relationships) Act 2001:

Health-related legislation:
Alcoholics and Drug-Dependent Persons Act 1968
Coroners Act 1985
Health Records Act 2001
Human Tissue Act 1982
Mental Health Act 1986

Criminal law legislation:
Crimes (Family Violence) Act 1987
Victims of Crime Assistance Act 1996

Consumer and business legislation:
Co-operative Housing Societies Act 1958
Goods Act 1958
Motor Car Traders Act 1986
Partnership Act 1958
Prostitution Control Act 1994
Retirement Villages Act 1986
Second-Hand Dealers and Pawnbrokers Act 1989
Trustee Companies Act 1984

General legislation:
Guardian and Administration Act 1986

Acts amended by Statute Law Further Amendment (Relationships) Act 2001:

Architects Act 1991
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Discharged Servicemen's Preference Act 1943
Estate Agents Act 1980
Firearms Act 1996
Legal Practice Act 1996
Meat Industry Act 1993
Racing Act 1958
Water Act 1989, ss.93 and 95
Witness Protection Act 1991

B1. Domestic partner- living together:
A person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender).

Acts amended by Statute Law Amendment (Relationships) Act 2001:

Property-related benefits:Duties Act 2000
First Home Owners Grant Act 2000
Land Act 1958
Land Acquisition and Compensation Act 1986
Land Tax Act 1959
Landlord and Tenant Act 1958
Perpetuities and Accumulations Act 1968
Residential Tenancies Act 1997
Retail Tenancies Reform Act 1998
Sale of Land Act 1962
Stamps Act 1958 (repealed on 1 July 2001)
Wills Act 1997

Compensation schemes:
Accident Compensation Act 1985
Education Act 1958
Police Assistance Compensation Act 1968
Transport Accident Act 1986

Public sector superannuation schemes:
Country Fire Authority Act 1958
Emergency Services Superannuation Act 1986**
Parliamentary Salaries & Superannuation Act 1968**
State Employees Retirement Benefits Act 1979**
State Superannuation Act 1988**
Superannuation (Portability) Act 1989**
Transport Superannuation Act 1988**

Health-related legislation:
Health Act 1958

General legislation:
Equal Opportunity Act 1995

Acts amended by Statute Law Further Amendment (Relationships) Act 2001:
Children and Young Persons Act 1989Conservation Forests and Lands Act 1987Corrections Act 1986Water Act 1989, s.128

B2. Domestic partner-must live or have lived together in the past:
A person to whom the person is not married but with whom the person is living or has lived as a couple on a genuine domestic basis (irrespective of gender).

Acts amended by Statute Law Amendment (Relationships) Act 2001:

Property Law Act 1958
(Domestic partners who are separating and want to access the property settlement scheme set out in Part IX of the Property Law Act must also have lived together for 2 years and must meet several other requirements.)  

B3. Domestic partner-must have been living together for 2 years when person dies:
A person to whom the deceased person was not married but with whom the deceased person was living at the date of death as a couple on a genuine domestic basis (irrespective of gender); and who either

  1. had lived with the deceased person in that way continuously for 2 years immediately before their death; or
  2. is the parent of a child of the deceased person who was under 18 at the time of their death.

Acts amended by Statute Law Amendment (Relationships) Act 2001:

Administration and Probate Act 1958

Notes:

*A domestic partner must be an adult for the purposes of definition A but not for the purposes of the other definitions.

** In these superannuation Acts the Board or the administrators of the fund in question decide whether the person falls within the definition of domestic partner. This decision can be reviewed under administrative law.

Factors determining domestic partnership 
Whichever definition of domestic partner applies, there is the added requirement in all of the Acts listed that in determining whether a domestic relationship exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following:

  • the duration of the relationship
  • the nature and extent of common residence
  • whether or not a sexual relationship exists
  • the degree of financial dependence and interdependence and arrangements for financial support
  • the ownership, use and acquisition of property
  • the degree of mutual commitment to a shared life
  • the care and support of children
  • the reputation and public aspects of the relationship.

This requirement is set out in full in s.275(2) of the Property Law Act 1958.

IMMIGRATION

Immigration is covered by federal law. It was one of the first areas of law to recognise same-sex relationships.

Since 1991 an Australian citizen, permanent resident or eligible New Zealand citizen has been able to use an interdependency visa to bring their same-sex partner into Australia. However, there is a limited quota for interdependency visas each year.

Interdependency visas

Your partner can apply for an interdependency visa from outside or within Australia - seehttp://www.dimia.gov.au/migration/family/partners/interdependent.htm or http://www.immi.gov.au/

Generally a partner will first be granted a temporary visa for up to two years before being able to apply for a permanent visa. However, if they apply offshore and you have been together at least five years, they may get permanent residence immediately.

If the application is refused, in some cases you can appeal to the Migration Review Tribunal.

Good news

Australia is one of only four countries that have visas for same-sex couples (also UK, New Zealand and Netherlands).

Visa criteria

Immigration law is constantly changing. Always get legal advice.

See: ‘Taking action'

To qualify for an interdependency visa:

  • you must both be at least 18
  • you must have a mutual commitment to a shared life, excluding other interdependent relationships
  • your relationship must be genuine and continuing
  • you must live together, or not be living apart on a permanent basis
  • you must have been in a relationship for at least 12 months (unless there are compelling and compassionate reasons why the visa should be granted).

All visa applicants must also meet standard health criteria and public interest criteria, such as being ‘of good character' and not being a risk to national security.

How to prove your relationship

You don't have to have lived together continuously for 12 months. It is more important that your relationship is permanent and genuine, rather than you living together permanently. The sorts of things that could be used as evidence are:

  • photographs of you and your partner together - in different locations, and different seasons
  • letters or emails - to and from each other and from other people referring to your partner or your relationship
  • travel documents - showing you were in the same place at the same time
  • legal documents showing joint finances and commitment - for example, lease, mortgage, property title, Will, power of attorney, joint bank account, utility bills in joint names
  • envelopes with both names at the same address and dated postmarks
  • at least four statutory declarations from other people who can confirm the nature of your relationship.

Health test waiver

Of particular relevance to people who are HIV positive is the health test. This test is to prevent people coming into Australia with a costly medical condition that will over-use public resources.

For interdependent visas, the immigration department will overlook a failure to pass the health test if the cost to the community is not ‘undue'. The department estimates the cost of the person's health care. Get legal advice about what this means.

Refugees

Sexual orientation is an accepted ground of refugee status if the person has a genuine and reasonable fear that they would be harmed in their country because of it. However, just because homosexuality is illegal and can be punished by imprisonment or other penalty in their country this is not a sufficient ground for refugee status unless there is evidence that the law has been or will be enforced. The fact that same-sex couples can not live together in that country will be taken into account in deciding whether to grant an interdependency visa.

Where to get help

Gay and Lesbian Immigration Task Force

Tel 02 9283 4031

http://www.glitf.org.au/

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Refugee Immigration Legal Centre

Tel 9483 1140

http://www.rilc.org.au/

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Victoria Legal Aid

Human Rights & Civil Law Service

Tel 9269 0416 or 1800 677 402

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