What is a family?

The traditional family unit in Australia is the so-called ‘nuclear family’, consisting of a mother, a father and one or more children who are the direct biological descendants of (and are physically born to) their parents. Nevertheless, a large and increasing proportion of families in Australia do not fit this definition. There are increasing numbers of children born as a result of fertility treatments or surrogacy arrangements. Single-parent families, step-families, same-sex-parent families, blended families, and families with adopted children are also very common. Many children have powerful social, cultural, psychological and even biological ties to adults other than the people who care for them on a day-to-day basis.

Development of a non-discriminatory notion of ‘family’ under the law

The law has been slow to recognise the changing shape of Australian families. Recent years have seen very significant change to the law to remove discrimination against de facto (including same-sex) partners and their families, and to better recognise non-biological parent and child relationships and the relationships of children born under surrogacy arrangements. The recent changes and areas for likely future change are detailed in the sections below.

Traditional Western marriage

The modern law of marriage has developed from ancient English law that regarded the legal status of married people as fused or unified. This particular history continues to be reflected in our approach to family law matters in Australia – for example in the way that, under the Family Law Act, all the property owned either jointly or even solely by either spouse may be divided up between the parties after marital breakdown.

The law of marriage in Australia is contained in the Marriage Act 1961. It contains provisions about null or void marriages, marriageable age, authorised celebrants, marriages of defence force personnel, the legitimacy of children, and marriage offences (such as bigamy). Apart from requirements about the authority of celebrant and the marriage certificate, the law allows significant freedom in the form of the marriage ceremony itself.

Marriage under Aboriginal customary law

Aboriginal customary law is not formally recognised in the Australian legal system. In practical terms, however, the courts will usually strive to acknowledge important Indigenous family relationships, especially when they affect children. The Family Law Act provides that in making an assessment about the best interests of a child, their Aboriginal cultural background should be taken into account (section 60CC(3)(h) Family Law Act 1975).

Marriages made overseas

Generally a marriage which can be proved to have been legally made overseas will be upheld as valid in Australia. This will be the case even for marriages that would not have been legal if made in Australia, eg a polygamous marriage. However, same-sex marriages made overseas are not recognised.

A de facto couple is unmarried and may be a heterosexual couple or a same-sex couple. A de facto partnership may, in practical terms, look exactly like marriage. De facto partners usually live in the same residence together, form traditional household and family arrangements and they often have children.

But there has been no continuing recognition of legal status in a de facto relationship under the common law. That status is now being created under new laws being made by our modern parliaments.

Major reforms in 2008 to the Family Law Act, recognised de facto partnerships for the purposes of making property and financial orders under the Act. Although the parenting status of de facto partners had long been recognised in Australian family law, there were complications about the Commonwealth obtaining authority to intervene in property issues (constitutionally, an area for ‘states only’). These were resolved, finally, with the delegation of the necessary powers by the states, one by one up to 2010, when de facto partners in all states and territories in Australia (except WA which maintains its own legislation) gained access to the provisions of the Family Law Act to resolve issues relating to property distribution after relationship breakdown. For more details see Parenting and property after separation.

Recognition for same-sex de facto relationships

Between 2005 and 2010, the rights of same-sex couples in Australia were significantly advanced. This was done firstly by bringing same-sex relationships within the broader definition of ‘de facto’; and then, by wide-ranging legislative change that removed much of the discrimination against de facto couples and their families that previously existed in many areas of the law. However, this has not been extended to the right to get married.

Removing discrimination in Commonwealth law

The place of same-sex de facto relationships within Australian law has been slowly developing since the 1980s, despite complications arising from the Constitution. Additional impetus was provided by the delivery of the Human Rights and Equal Opportunity’s report entitled ‘Same-Sex: Same Entitlements’in 2007. This important report catalysed understanding that additional and significant formal change was required to remove discrimination against same-sex de facto couples and their families.

Committing to a program of major reform, the Rudd Government passed ‘umbrella’ legislation that recognised and extended equal rights to same-sex de facto partners and their families across about 100 different areas of the law where discrimination had previously existed. The areas of the law addressed included such diverse areas as superannuation, workers’ compensation, hospital visitation rights, immigration, inheritance, Medicare, Centrelink benefits and many others. The landmark pieces of ‘umbrella’ legislation were: the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008.

Changes in state and territory law

Discrimination in state and territory law against de facto couples (including same-sex couples) has also been virtually removed from the law in all Australian states and territories. However, the forms of legal recognition of the de facto relationship itself (which must be through legislation as there is no common law recognition of a de facto union) differ between jurisdictions.

There are no Australian jurisdictions that permit marriage between same-sex de facto couples. In addition, there are many de facto couples, including same-sex couples, who do not want to be married, and yet have a relationship that requires a recognition for legal purposes in a variety of contexts. There are three basic mechanisms employed by the states and territories for legal recognition of de facto relationships.

These are:

  • a relationship register;
  • a domestic partnership agreement; and
  • de facto definitions within individual laws.

NSW, Victoria, Queensland, the ACT and Tasmania all have ‘relationship (or civil partnership) registers’. The law creating the NSW register is the Relationships Register Act 2010. Once registered, a de facto couple can assume all the rights provided to a de facto couple under the law, over time, without needing to formally prove their de facto relationship on each occasion the issue becomes relevant. The rights of a de facto couple in these jurisdictions are closely aligned now with those of married spouses, with only some differences as between jurisdictions in isolated areas of law (particularly in relation to adoption and surrogacy).

South Australia has a system of ‘domestic partnership agreements’ where a couple seeking to be recognised as ‘domestic partners’ (a term used instead of de facto) must make a written agreement about their status. If the agreement is validly made, and they satisfy additional ‘commitment’ requirements, they will be recognised as ‘domestic partners’ under South Australian law.

Under the law in force in Western Australia, the Northern Territory and Norfolk Island, access to de facto status is defined by specific criteria (such as length of relationship) within individual laws, without any additional mechanism such as a register or agreement to streamline claims to de facto status in different situations.

See also Same-sex couples and adoption.