Are same-sex relationships treated the same as opposite sex (de facto) relationships and marriages in South Australia?

Equal treatment

In some areas of law, the Family Relationships Act 1975 definition does not apply and a relationship of any length will be recognised. Same-sex partners, de facto partners and married partners are treated the same in relation to:

being eligible for Legal Aid
getting a restraining order against a violent partner
court orders for care of children.

A same-sex partner is also included in the definition of a 'close family member' under the Criminal Code 1995 (Cth). A 'close family member' of someone found to be a 'terrorist' cannot be charged with associating with a terrorist.

Equal treatment if 'domestic partners'

In other areas of law, only same-sex partners and de facto partners who come under the definition of a 'domestic partner' have the same rights as married partners. This is so, for example, where:

one partner dies without a will
a partner dies and their will does not adequately provide for the surviving partner
there are compensation or superannuation claims arising from the death of a partner
a partner is ill and needs someone to make medical decisions for them
organ donation has been requested
stamp duty would otherwise be payable on certain transfers.

Unequal treatment

Same-sex relationships and de facto relationships are treated differently from legal marriages when there are disputes over property. The Domestic Partners Property Act 1996 applies to same-sex and de facto partners, whereas the Family Law Act 1975 (Cth) applies only to married couples. Unlike other States (except Western Australia), which have referred their power over de facto property law to the Commonwealth government, South Australia has decided to retain this area of law. In other States, de facto property disputes are covered by the Family Law Act 1975 (Cth).

Same-sex relationships are treated differently from de facto relationships and legal marriages in relation to reproductive technology and adoption. Same-sex partners are not eligible to adopt children. While all infertile women can obtain fertility treatment, fertile same sex partners cannot access reproductive technology in South Australia. In other words, lesbian women who are not medically infertile cannot access treatment for artificial insemination through a licensed clinic.

Although traditionally, same-sex relationships have not been recognised under Commonwealth legislation, changes have been made to Commonwealth laws so that same-sex partnerships are treated the same as opposite sex de facto partnerships in areas such as Social Security, taxation, superannuation and immigration. The majority of these changes will take effect on 1^st July 2009.