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Alternative Law Journal |
Natalie Hill
Natalie Hill is a lawyer in the Information Law
Branch of the Commonwealth Attorney-General’s Department.
The views in
this article are those of the author and do not necessarily represent those of
the Department.
There are growing calls for legal recognition of same-sex
couples. Legal recognition of same-sex relationships is necessary to reduce
discrimination experienced by same-sex couples.
Recently, there has been
some action at a political level. While, as a whole, Australian governments are
not rushing to recognise same-sex relationships, at least they are beginning to
display a willingness to open the issue for public discussion. For example, in
1997 the Victorian Equal Opportunity Commission produced a Discussion Paper on
Same-sex Relationships. In recent months the Human Rights and Equal Opportunity
Commission produced a report that deals with access of same-sex partners to
superannuation entitlements. Before the recent NSW election the Significant
Relationships Bill 1997 and the De Facto Relationships Amendment Bill 1998,
which both dealt with same-sex relationships, were before the NSW Parliament,
and the NSW Standing Committee on Social Issues conducted an inquiry into the De
Facto Relationships Amendment Bill. In some States limited recognition has
already been achieved in some areas, for example, in 1998 the NSW Parliament
passed some amendments recognising same-sex couples in the areas of workers and
victims compensation. NSW has recently joined the ACT in recognising same-sex
relationships in a more comprehensive manner. The Property (Relationships)
Legislation Amendment Act 1999
(NSW),[1] the majority of which
commenced on 28 June 1999, amends the De Facto Relationships Act 1984
(NSW) and other Acts to deal with same-sex relationships.
Calls for
recognition of same-sex relationships raise the question of the most appropriate
form of recognition of those
relationships.[2] Should same-sex
relationships be recognised as de facto relationships? Should the marriages of
same-sex couples receive legal recognition? Are other forms of recognition more
appropriate?
One approach to finding a solution to the questions surrounding the most
appropriate way of recognising same-sex relationships is to examine the basis on
which particular forms of recognition are afforded to heterosexual couples in
our society. Once the basis for the conferral of that form of recognition is
determined the extent to which it is relevant to homosexual couples should be
considered. This article examines the extent to which those same forms of
recognition continue to be relevant in relation to modern heterosexual
relationships. Such an examination may also raise the question of whether there
are forms of recognition relevant to homosexual couples that will not be
relevant to heterosexual couples, but this provides another topic in itself and
will not be examined here.
What follows is a discussion of one issue that
has been raised as an argument against certain forms of recognition of same-sex
relationships.[3] That issue is
dependence.
This discussion focuses on financial, rather than emotional,
dependence. The issue of financial dependence will need to be considered in any
examination of the relevance of certain forms of legal recognition to
significant emotional relationships.
Whether partners are married or in a de facto relationship the legal
recognition of a significant emotional relationship leads to a number of
benefits for partners in heterosexual couples. I will consider two types of
benefits that accrue to the partners in heterosexual marriages and de facto
relationships.
Emotional benefits are primarily next of kin rights in relation to the death
or illness of a partner. They include the right to visit a patient in intensive
care and to take bereavement and family care leave, the automatic award of
guardianship, which provides the power to give medical consent and control of
other affairs, and the ability to authorise organ donation and postmortem, to
request an inquest with a jury, and to claim for psychological/psychiatric
injury following the death or injury of a partner. Other emotional benefits
include the ability to claim exemption in relation to giving evidence against a
partner and the right to be considered for protection in relation to bail
applications.
Economic benefits consist of legal rights of access to the courts in relation
to financial matters arising from the partnership, such as the right to
challenge a deceased partner’s will and access to provisions of the
Family Law Act 1975 (Cth) or de facto relationship legislation on
the breakdown of the relationship.[4]
Currently, economic benefits are awarded on the same basis as the majority of
emotional benefits, that is, the participation of the individual in an
emotionally significant heterosexual relationship.
The extent to which awarding economic benefits on the same basis as emotional
benefits is appropriate deserves consideration. Emotional benefits are primarily
afforded to members of heterosexual couples on the basis that they have a
significant emotional relationship with the other partner in the couple.
Emotional benefits provide rights to each member of the couple that recognise
the significant intimate nature of the relationship to which the partners belong
by giving the partners rights in relation to each other and in relation to the
rest of the community in accordance with the nature of their relationship.
Therefore, the attribution of emotional benefits on the basis of the existence
of a significant intimate emotional relationship appears to be appropriate.
Economic benefits are also attributed to partners in a heterosexual
relationship primarily on the basis of participation in an emotionally
significant relationship. However, the reason for this cannot be so obviously
linked to the significant intimate nature of the relationship because economic
benefits are not about rights individuals might have in relation to the intimate
life choices of their partner or recognition by the community that a significant
intimate relationship exists between two people. Economic benefits are about
property and its division.
The basis on which economic benefits are
afforded to heterosexual couples should be given careful consideration in
establishing whether it is appropriate for those benefits to be attributed to
homosexual couples. A closely associated question is whether the attribution of
economic benefits on the basis of the existence of an emotionally significant
relationship also remains appropriate for heterosexual couples.
Historically, financial dependence and inequality between partners has
underlain heterosexual relationships. This has shaped the way in which
heterosexual relationships have been recognised by the legal system. An
assumption that one partner will be financially dependent on the other in a
heterosexual relationship may account for the attribution of economic benefits
on the same basis as emotional benefits, that is, on the basis of membership of
an emotionally significant relationship. As a result, economic benefits appear
to be granted to the partners in a heterosexual couple merely because they are
members of a recognised couple (that is, as a direct result of the public
manifestation of their relationship) and there is no further examination of the
basis on which those benefits should be granted.
The diversity of modern
relationships, whether heterosexual or homosexual, reduces the effectiveness of
generalisation along the lines of sexuality. This is also true in relation to
the assumption of dependence. The underlying assumption of dependence is
becoming less relevant for heterosexual couples as the prevalence of couples in
which both partners are engaged in full-time employment for most of the
relationship, or share the time taken out of the workforce to care for children,
increases. At the same time, homosexual partners may structure their
relationship so that one partner is dependent on the other, particularly if the
couple assumes caring responsibilities for children or others.
The
corollary of the assumption of dependence in heterosexual relationships is an
assumption that homosexual relationships do not involve dependence. There
appears to be an assumption that there is no detrimental role division in
same-sex partnerships. As the assumption is not always true in heterosexual
relationships equally the corollary does not hold true in all homosexual
relationships.
Historically, the absence of dependence is not the reason
homosexual relationships have been denied recognition, however, dependence is
now being identified as one of the factors that make homosexual relationships
unsuitable for recognition in the same way as heterosexual
relationships.[5]
Some reluctance to recognise homosexual relationships in the same way as
heterosexual relationships on the grounds of dependence may stem from a
realisation that the nature of dependence is different in homosexual and
heterosexual relationships.
Although it is not appropriate to generalise
concerning the existence of dependence on the basis of sexuality, it is possible
to identify societal and state pressures that operate on heterosexual couples to
encourage dependence, and influence the internal ordering of heterosexual
relationships, that do not operate in relation to homosexual couples.
Once the effect of these state and societal pressures on heterosexual
couples is realised it may be argued that because a relationship of dependence
is encouraged by the state and society, and the internal ordering of the
relationship is also influenced by state and societal pressure, individuals who
adopt relationships of dependence in response to those pressures are in some way
more deserving of redress for the disadvantages they suffer than those who adopt
relationships of dependence by choice. Following this line of argument, it is
the nature of dependence, based on the degree of free choice involved in the
adoption of the relationship of dependence, that dictates whether that
dependence should lead to recognition by the state, rather than the fact of
dependence itself.
The state encourages dependence and influences the internal ordering in
heterosexual relationships in some circumstances. For example, the
administration of social security benefits aggregates the incomes of married
couples and people in marriage-like relationships for the purposes of income and
assets tests.[6] This works to
reinforce the dependence of the unemployed spouse on the employed spouse in
heterosexual relationships, but does not work in the same way to reinforce the
dependence of homosexual partners because homosexual couples are currently
excluded from the definition of marriage-like relationships. A further example
of such influence can be found in the application of the cohabitation rule. The
cohabitation rule can disqualify a parent who is caring for a child from
receiving a sole parents pension if that parent enters into a marriage-like
relationship,[7] thereby encouraging
dependence. The absence of adequate income support for an unemployed spouse, or
a heterosexual parent who, as part of a couple, takes time away from paid
employment in order to care for a child, forces dependence.
Given that
in heterosexual relationships women are more likely than men to adopt the home
making role and child caring responsibilities should there be a need for one
partner in the relationship to do so, these initiatives have the effect of
reinforcing the dependence of women in heterosexual relationships.
Not
only the operation of the law, but also the operation of social and economic
policies encourage women to become financially dependent on men once they enter
a heterosexual relationship and have children. Notably, this is achieved by the
lack of adequate and affordable childcare combined with the inability of women,
generally, to command wages equivalent to those commanded by
men.[8] Apart from any specific
disadvantage a woman may suffer on account of her caring and domestic duties,
the sexual division in the workforce means that satisfying, well paid, jobs may
not be available to significant numbers of
women.[9]
Further, a broadly
socially accepted sexual division of labour within heterosexual relationships is
often responsible for the dependence of one spouse on the other. Importantly,
women’s dependence on men within heterosexual relationships is reinforced
because it is women who are socialised into adopting the role of carer within
the family.[10] They are responsible
not only for children, but for elderly relatives, or any other member of the
family when they become sick. This sort of carer work is unpaid and as a result
for a woman to carry out fulltime caring functions she must either be dependent
either on a man or on the state. Even where a woman with carer responsibilities
does participate in the workforce her employment is limited by the constraints
of her domestic and caring obligations.
Compounding this situation,
child rearing places women in a position of economic vulnerability. It not only
makes many heterosexual women directly dependent on men for the duration of
child rearing but it reduces a woman’s ability to compete effectively in
the workforce. This is because she has forgone her opportunity to gain
experience and seniority in the paid workforce and the skills gained in the home
may not be recognised by prospective employers.
Although parents in
same-sex couples may experience similar detriment in relation to child rearing,
the point of significance is that in heterosexual relationships the combination
of state and societal pressure encourages dependence in heterosexual
relationships more often and results in a pattern relating to which party is
more likely to bear the disadvantages of dependence. These disadvantages are
primarily borne by women in heterosexual relationships.
It is,
therefore, clear that there are forces operating on heterosexual couples that
tend towards and reinforce the dependence of one partner on the other and
influence the internal order of the relationship that do not operate to the same
extent in relation to homosexual couples. Homosexual couples may adopt a
relationship of dependence but their choices are not socially constructed in the
same way as heterosexual couples’ choices and for that reason may be seen
as choices that are relatively freely made and therefore, in so far as
dependence is considered, unproblematic from a policy perspective.
As
discussed above, it is possible to take the step from this analysis to the
argument that because dependence in homosexual relationships is driven and
influenced by forces different from dependence in heterosexual relationships,
individuals involved in homosexual relationships should not have access to the
same measures available to heterosexual couples to redress any financial
disadvantages suffered as a result of that dependence.
The argument that a relationship of dependence encouraged by the state and
other external pressures is deserving of recognition and redress in relation to
disadvantage suffered on the basis that the individuals involved are restricted
by the social construction of their choice is an argument with validity,
particularly in relation to the manner in which the state deals directly with
the couple.
However, such an analysis fails to recognise that even though
a member of a homosexual couple may freely choose to assume a dependent role in
a relationship, the fact of dependence is still experienced by that individual
and they may suffer disadvantage as a result. Most significantly neglected by
the analysis is the impact the assumption of child rearing responsibilities has
on the members of a couple whether they are homosexual or heterosexual. If a
couple chooses to rear a child at home with one parent adopting the full-time
primary caring responsibility for that child, in most cases one member of the
couple will need to assume a role of dependence. The fact that in heterosexual
relationships a pattern exists in which it will more often be the woman who
assumes the role of dependent does not alter the fact that one member of the
couple must assume that role. A homosexual parent assuming full-time caring
responsibilities for a child does not choose dependence as freely as it might at
first appear under the above analysis because one member of the couple must
assume that role in order to care for the child in any event. Once that role is
assumed by a carer or parent in a same-sex couple that person experiences
dependence as does a heterosexual carer or parent.
If there are no
intervening policy considerations necessitating discouragement of same-sex
couples adopting relationships of dependence and assuming caring
responsibilities within those relationships, then there should be no
justification for treating dependence in same-sex relationships differently than
in heterosexual relationships.
As the experience of dependence and the
associated disadvantages are a fact for both homosexual and heterosexual couples
it is not appropriate to deny individuals in homosexual couples the economic
benefits available to individuals in heterosexual couples on the basis that
their dependence is not influenced by the same state and societal forces. As we
are discussing mechanisms for redress that operate between the members of a
couple, for example the ability to challenge the will of a deceased, not
benefits received directly from the state, there seems to be little basis for
arguing that these economic benefits should be available only to those who have
been influenced in the internal ordering of their relationship by state and
societal pressure.
Currently, mechanisms for recognising and redressing disadvantages that may
flow from the adoption of a relationship of dependence in homosexual
relationships are complex and cumbersome. Members of same-sex couples are forced
to rely on the common law, except in the ACT and NSW where the Domestic
Relationships Act 1994 (ACT) and the Property (Relationships) Act
1984 (NSW) deal with same-sex relationships.
Legislation dealing
with the distribution of property on the breakdown of a heterosexual
relationship, such as the Family Law Act 1975 (Cth), and the De Facto
Relationships Act 1996 (SA) serve a remedial function. One of the objects of
the acts is to redress economic disparities created through role divisions
assumed during relationships. The courts attempt to redress such economic
disparities by considering factors such as the financial and non-financial
contributions of the parties during the relationship.
Role divisions
that cause a relationship of dependence and lead to economic disparities
requiring some measure of redress may occur, albeit under the influence of
different pressures, in both heterosexual and homosexual relationships. If the
role of law in this area is remedial, and its purpose is to give proper
recognition to, among other things, different types of contributions made
throughout the course of a relationship, there is no justification for denying
relief on the basis of the sexuality of the partners. When viewed in this way
there does not seem to be any justification for excluding homosexual couples
from the quicker, cheaper, more predictable and more flexible methods of
resolving their disputes under the available legislation on the basis of an
assumption that in such a relationship there is no relevant dependence. Exactly
what form of recognition is the most appropriate is a question left for another
day.
In a recent article examining the results of a survey of the views
of the gay and lesbian community in relation to the legal recognition of their
relationships, Sarantakos concludes that in light of the inconclusive results,
and the concerns expressed in the survey about the forced recognition of those
in clandestine relationships, the recognition of same-sex relationships should
proceed in a manner that allows personal
choice.[11] Although valid, I
believe that it is also important that the emphasis on personal choice does not
result in a situation where dependent members of same-sex couples are denied
access to legal mechanisms that would assist them to redress any detriment they
have suffered as a result of their dependence because the other member of the
couple exercises their choice not to have the relationship recognised. Some of
Sarantakos’ survey participants expressed similar concern in their
responses.[12] In a subsequent
article, Sarantakos notes this danger in a discussion on registered domestic
partnerships.[13] The remedial
function of the legislation at issue is of great use in relation to the least
powerful members of a relationship. Allowing the dominant partner in a
relationship to avoid their obligation to the less dominant partner by providing
them with a choice about recognition of the relationship may not be a
satisfactory outcome. However, the issues surrounding the public recognition of
same-sex relationships does complicate the treatment of such
relationships.
On the basis of this analysis it may seem more appropriate to attribute
economic benefits, to the extent that they are based on an assumption of
dependence, on the basis of the existence of a relationship of dependence, and
to attribute emotional benefits on the basis of the existence of an emotionally
significant relationship. Such an approach would apply without regard to the
sexuality of the individuals involved. It would seem to achieve the aim of
redressing the inequities borne by individuals, created by the adoption of a
relationship of dependence, that the conferral of economic benefits on
heterosexual couples was historically intended to achieve. At the same time this
approach provides recognition appropriate to those in emotionally significant
relationships.
It is recognised, however, that such an approach would
deny partners who were not engaged in a dependent relationship access to
provisions dealing with the distribution of property on the breakdown of a
relationship in legislation like the Family Law Act 1975 (Cth) and the
De Facto Relationships Act 1996 (SA). This result is not desirable
because in practice, as well as performing a remedial function, such legislation
also assists with property division where no such remedial function is
necessary. This result demonstrates that the analysis cannot be completed by
considering only one possible basis on which economic benefits may be conferred.
Financial dependence is not the only consideration. To arrive at a complete
picture, an analysis of each of the bases for the attribution of legal
recognition is required. This article sets up and tests a methodology, but the
broad ranging analysis required by this problem is obviously beyond the scope of
the article.
This analysis does show that the attribution of emotional
and economic benefits to same-sex couples certainly cannot be denied on the
basis of an assumption of dependence in heterosexual couples.
Because the division of labour within relationships occurs in the private
sphere, and is therefore often invisible, the perception that economic benefits
are granted to the members of a heterosexual couple merely because they form a
recognised couple is heightened. The conferral of economic benefits is linked
primarily to the recognition of emotionally significant relationships which as
yet do not consistently include homosexual relationships. The underlying reasons
for the conferral of recognition of different types should be examined in any
discussion of an extension of those forms of recognition.
Reluctance to
recognise the needs of homosexual people concerning redress of economic
disparities occurring during their relationship may be linked to different
causes of dependence for heterosexual and homosexual partners. There appears to
be an assumption that there is no detrimental role division in same-sex
partnerships. In fact, there is nothing precluding such detrimental role
division. Where detrimental role division does take place in same-sex
relationships it is not in response to the same pressures felt by women in
heterosexual relationships. For this reason it may seem more compelling to
recognise dependence in heterosexual relationships, which is not chosen freely
but dictated by social structure, than dependence in homosexual relationships
which appears to be a function of choice.
Although this reasoning has
validity it seems unnecessarily harsh to extend it beyond benefits bestowed
directly on a member of a couple by the state in an attempt to redress action
taken in response to societal and state pressure. Where the above reasoning is
used to affect access by members of a couple to laws that provide mechanisms for
an internal redistribution of property within the couple itself in an attempt to
redress the economic disparities created as a result of role division within
that couple, it produces undesirable results. The reason the couple adopted the
role division should not be a relevant consideration when considering the
attribution of economic benefits.
Given the diversity of modern
relationships, the consequent irrelevance of an assumption of dependence in an
increasing number of heterosexual relationships, and the incidence of dependence
in homosexual couples, it seems that before any benefits are conferred on
members of a couple, whether they are homosexual or heterosexual, the basis on
which that benefit is conferred needs to be established and the relevance of the
benefit examined.
References
[1] Among other things, the
Property (Relationships) Legislation Amendment Act 1999 amends the title of the
De Facto Relationships Act 1984 to the Property (Relationships) Act
1984.
[2] See Sarantakos, S.,
‘Same-Sex Marriage: which way to go?’ (1999) 24(2) Alternative
Law Journal 79 for an example of the current debate on the most appropriate
form of legal recognition of same sex
relationships.
[3] Walker, K.,
‘Same-Sex Relationships and the Law’, (1997) 22(6) Alternative
Law Journal 294.
[4] In my
analysis of economic benefits I have not addressed the appropriateness or
otherwise of the manner in which the state treats members of married or de facto
couples in its direct interaction with the members of those couples, for example
in relation to the treatment of recognised couples in taxation and social
security law. I consider only the availability of mechanisms that operate
between the members of a couple to redress any disadvantage suffered as a result
of the adoption of a relationship of dependence. The issue of dependence would
be important in any exploration of the appropriateness of the manner in which
the state treats members of emotionally significant
couples.
[5] Walker, K., above, at
294.
[6] Neave, M., ‘From
Difference to Sameness — Law and Women’s Work’, (1992) 18(2)
Melbourne University Law Review
794.
[7] Neave, M., above, at
795.
[8] Neave, M., above, at
807.
[9] Neave, M., above, at
768.
[10] Land, H.,
‘Changing Women’s Claims to Maintenance’, in Freeman M.D.A.
(ed), The State, the Law, and the Family, Critical Perspectives, Tavistock
Publications, Sweet and Maxwell, New York, 1984,
p.27.
[11] Sarantakos, S.,
‘Legal Recognition of Same-Sex Relationships’, (1998) 23(5)
Alternative Law Journal
225.
[12] Sarantakos S., above,
at 224, Table 1.
[13] Sarantakos,
S., ‘Same-Sex Marriage: which way to go?’ (1999) 24(2)
Alternative Law Journal 84.