Courting equality

Married, divorced, widowed, single, de facto, gay and straight; the face of the ‘average’ Australian family is changing. Family law experts argue urgent changes are needed to ensure all families are equally valued under the law.

Professors Jenni Millbank and Nancy Polikoff

Since the 18th century, marriage has formed the basis of family law in the United States, Europe and Australia. While the role of marriage in society has changed, many family laws have failed to keep up.

“Looking backwards, women really had no choice but to marry. They had no means of living independently and then when they married they lost their legal identity,” explains Professor of Law at American University Washington College of Law, Nancy Polikoff.

“So of course there was this dependency that a woman had on her husband and a lot of law grew up around that.”

Today, “marriage is really optional in a way that it wasn’t for most of our history and women do have an opportunity to live independently from men. So there are more options for how people arrange their families and I would like law to respond to how families actually live today and not to the idea of family from a different time.”

Last month, Polikoff visited UTS on a Fulbright Senior Specialist award. During this time, Polikoff spent time with UTS Professor of Law, Jenni Millbank, comparing American and Australian responses to non-traditional family forms.

Millbank believes Australia is “streets ahead” of the US, especially since major reforms in late 2008 granted both same-sex and heterosexual unmarried couples virtually all the same rights as married couples, in both state and federal law. From this year, all couples can now access the family court for property disputes, and same-sex couples and their children are now treated equally in relation to superannuation, Medicare, immigration and social security.

Empty nesters

De facto

However, both Polikoff and Millbank agree that more work always needs to be done to ensure all family relationships are equally valued under the law.

"This will make it possible to provide single-parent households, extended family units, and myriad other familial configurations, the recognition and protection they need to build and sustain economic and emotional interdependence and nurture the next generation," says Polikoff.

As divorce rates and the number of unmarried people rise, informal family relationships are becoming more common. While Australia has recognised de facto couples since the 80s, and extended many of the same rights to same-sex couples through the 90s and 2000s, other kinds of non-couple based informal family relationships are still not accepted.

“For many people their family members are not defined by an intimate partner but in other kinds of ways and if we care about the wellbeing of everybody, we want to make sure that they’re economical and emotional needs are also met,” says Polikoff.

The impact of this failure is particularly keen for those who are not in a long-term partnership and who may not be close to their biological families of origin, which Polikoff argues may hit gay and lesbian communities harder.

Single, lives at home

Lesbian, de facto, with kids

“If you’re from a small town you might move away from that town to a city that’s going to be more welcoming of you as a gay and lesbian person, and then it is common to form a family around you within the lesbian and gay community. And there are some ways in which the laws should take that into account.”

Polikoff cites a close friend of hers “who lives alone and doesn’t have a partner and doesn’t have children and her sister lives far away. The notion that if she gets sick she might go uncared for because the people who love her the most would lose their jobs, that’s a very unfair system.”

While some groups advocate same-sex marriage as the solution, Polikoff believes marriage itself is the problem. Acting as a dividing line in US law, heterosexual married couples are afforded an array of legal and economic privileges unavailable to those who are not. And this is already presenting problems for issues like surrogacy.

“The law really needs to pay attention to what people are actually doing and deal with it because lesbians and gay men are having children through assisted reproduction and some of them will go to great lengths and travel to make that happen,” says Polikoff.

The government “can’t ignore those children exist and need to be looked after properly. So I think it is an area where it’s really separate from the question of marriage, it’s really about parents raising children.”

Divorced with kids

Mother, wife, carer

According to Millbank, Australia is also suffering from less accessible adoption regimes, as compared with the US. The reason being our generally lower adoption rates.

“There are so many children available for adoption in the US, that American adoption law developed a lot more flexibly because they were motivated by wanting to find a family for those kids. They have far fewer restrictions on relationship status for example and far more creative judicial interpretations for restrictive statutes, where they read ‘man’ as ‘person’ and ‘married couple’ as just ‘couple’. Whereas Australia doesn’t have that tradition of flexible interpretation of statutes, we’re much more literal.”

However, Australia has pursued many progressive reforms through the parliaments rather than the courts. Victoria, Western Australia and the Australian Capital Territory have already changed their laws to allow same-sex couples to adopt. Currently, the NSW Parliaments Standing Committee on Law and Justice is conducting an inquiry into whether NSW adoption laws should be amended as well.

Even as more inclusive laws are passed, Millbank believes one issue could prevent them from being widely applied in society.

“I’m really concerned at this point that there’s such a mistaken understanding in the public’s mind, that people still think that there is a really major difference in legal status between married and de facto couples in Australia,” says Millbank. “Particularly same-sex de factos who don’t know that they have all of the same rights as heterosexual de factos and married couples.”

Single mum

Single, lives with roommate

Preliminary results from a recent Gay and Lesbian Rights Lobby survey shows that “in NSW where same-sex couples have had comprehensive de facto rights for 10 years now, only 30 or 40 per cent of respondents knew they were next of kin in the case of death or coronial inquest or organ donation and only about 50 per cent of them knew that they had property rights,” says Millbank.

“So if nobody knows it’s there, then it doesn’t really exist. And the consequences from that can be just as devastating as not having these laws in the first place.”

Know your rights
To find out more about family law, visit Family Relationships Online. For specific information about how family laws affect same-sex couples, visit the Gay and Lesbian Rights Lobby website.

Fiona Murray
Marketing and Communication Unit

Photographer (N Polikoff and J Millbank): Fiona Murray
Photographer (empty nesters): Fiona Murray
Photographer (other profiles): Joanne Saad

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