"Marriage equality: dotting the Is and crossing the Ts"

Monday August 3, 2015

The below media release is from 14 June 2015 has been provided by Amy Jenkins, Aitken Law.

Marriage equality: dotting the Is and crossing the Ts

Marriage equality in Australia is all but certain. Sure, there remains a minority who want to restrict the affirming union of marriage to men and women only, but, like the Catholic Church in Ireland before the recent vote on the issue, they will restrict their 'no' campaigns to sermonising among themselves.

And so, while the leader of the opposition's private member's bill for marriage equality is to be debated in August, where we may well see the definition of marriage move to that of 'two people', it's probably a good idea to reflect on how marriage equality is more a starting point for the way we are redefining our fundamental and legal understanding of the family.

This is because changes in favour of marriage equality will require changes to a number of pieces of legislation both state and federal which will affect everything from the definition of parents, to surrogacy, to the question of who receives family tax benefits, all of which still suffer from discriminatory attitudes to same-sex parenting. Currently the Family Law Act defines parents in terms that do not refer to biological heritage. While a court can order DNA test to determine the identity of a parent, the act defines the presumption of parenthood in terms as obscure as references to cohabitation for a period of 44 weeks.

We live in a society where the numbers of those identifying as same-sex couples has tripled in the last twenty years, and the number of children living with them has almost doubled in the past fifteen; all dutifully recorded by the Australian Bureau of Statistics which found also that same-sex couples were often better educated and more inclined to evenly split the housework.

And, while other studies have shown us that the children of same-sex parents enjoy better levels of health and wellbeing than their peers, negative attitudes to same-sex parents remain. These pockets of discrimination feed on the belief that children raised in these otherwise loving homes are more likely to experience confusion over their sexual orientation and gender identity and therefore more likely to be homosexual and experience stigmatisation. Which brings us to recent submissions, in Victoria, by adoption agencies to that state government, asking for the right to discriminate against same-sex couples who wish to adopt, in terms that would also allow for biological parents giving up children for adoption to do the same.

Of course, many same-sex couples choose to avoid discrimination of this kind and have children through assisted reproductive technology so that, often a child is born into an arrangement that includes two mothers and two fathers who are in respective same-sex relationships, with one woman and man from each of those couples acting as birth 'parents'.

Here, complexity reigns because the law, and perhaps the discriminatory beliefs that inform it, has a lot of catching up to do. For the purposes of child support should this complicated relationship break down, a 'parent' is defined as the woman who gave birth to the child – the birth mother – whether or not it was her egg involved in conception. And the male partner of this woman, whether or not his sperm was involved in conception, will be considered a 'parent' if he consents to the process.

Also, the child support laws do not necessarily presume that the female partner of the birth mother, who probably considers herself a lesbian co-mother, is a parent and therefore may not be liable to pay child support. The male partner of the birth father who may consider himself a co-parent is not considered as such under the law and is also unlikely to be legally responsible for financially providing for a child after separation.

This situation can become highly problematic when, for example, the birth mother dies. Sadly, where there are no parenting orders in place, the child is not automatically allowed to stay with the lesbian co-parent and may be displaced by court order that provides the child live with the birth mother's family or perhaps even the biological father's family. s As the definition of family changes the public and the court will be asked to delve into the quagmire and find a solution. As we move towards (and not quickly enough) marriage equality it is time to reconsider the legal structures we have in place to support the modern and varied family.

Traditional values associated with how we view a family have been changing in Australia since the early 1970s. We now use terms like 'blended family' and 're-partnering' to describe the many new combinations that heterosexual family arrangements now exhibit, and its very likely, as marriage equality becomes a part of the legal and social milieu, that the situation will continue to evolve.

All of this rearrangement is possibly driven by an age that enshrines rights and freedoms for individuals as a higher priority over traditional values, which is perhaps the main reason why we continue to remind ourselves to look to the betterment of those who, in this process are unable to advocate entirely for themselves and so continue to champion their rights with family law's now well-worn phrase: the best interests of the child.

Amy Jenkins is a family law senior associate with Aitken Lawyers.

Read more: http://www.smh.com.au/comment/marriage-equality-dotting-the-is-and-crossing-the-ts-20150614-ghmikg.html#ixzz3h33lHxI1

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