Family Law in Australia. The legal system has changed dramatically in the last century or so, and has been forced to address certain issues regarding Family Law; such as the recognition of same-sex relationships and the issue of surrogacy and birth techno

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The Family Law Act 1975 (Cth) defines a family as “the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children.” This already makes it clear that the primary motive for intervention by the law in a family relationship would be the protection of dependent children. Different features of family law are addressed in different ways by the legal system which provides different responses and values for certain areas of family law. The legal system has changed dramatically in the last century or so, and has been forced to address certain issues regarding Family Law; such as the recognition of same-sex relationships and the issue of surrogacy and birth technologies. The legal system continuously endeavours and reforms to provide effective legislative remedies and modify existing remedies to befit the needs of individuals within families. Family law has always been a colossal aspect of Australian society with many effective measures in place for family matters. Numerous values and their effectiveness have been debated through various features of family law, and these debates continue to the present day.

Same-sex relationships have been a historical controversy. In Hyde v Hyde and Woodmansee 1866 it defines marriage as, “the union of a man and a woman voluntarily entered into for life to the exclusion of all others”. Although still used today, society’s perception of marriage and of the family unit has changed dramatically. This can be seen in the emergence of same-sex relationships. The legal recognition of same-sex relationships in NSW and elsewhere in Australia has increased dramatically in the last 20 years to a point where most jurisdictions generally provide same-sex couples with the same rights and obligations as heterosexual de facto couples. However, the extent to which same-sex relationships are or should be recognised continues to elicit much debate. With Australian law based on Canon principles, which forbid homosexuality, it has traditionally been against the law (and against basic morals) to be a homosexual. Before the 1970’s homosexuality was considered a crime in all states of Australia. Since then, for the next decade or so, individual states in Australia began to pass legislation that decriminalised homosexuality. It is now legal in all states in Australia. Thus, each state then began to establish and amend laws to afford homosexuals their rights and also responding to their needs. The Family Provisions Amendment Act 1982 ensures that same-sex couples are awarded the same rights to appeal wills as heterosexual couples. Legal remedies have also been evident in various cases of common law which have resolved many conflicts relating to same-sex relationships. This can be seen in the case of Jan Bell, who in 1996 successfully appealed the terms of the property division of her lesbian partners’ estate, who died intestate. Furthermore, various reforms to the law have meant that accessibility is now effective for all individuals involved. Nevertheless, prior to the property act, same sex couples could not claim property upon the dissolution of the relationship based on the grounds of the De Facto Relationships Act 1984, instead having to apply to the Supreme Courts Equity Division tribunal which would normally incur a great cost to all the parties involved. Amendments to this act in the form of the Property Act meant that couples in a same-sex relationship could access the same property division laws as heterosexual couples. The De Facto Relationships Act 1984 (NSW) was amended by the Property (Relationships) Legislation Amendment Act 1999 (NSW) and renamed Property (Relationships) Act 1984 (NSW). The Property (Relationships) Act recognises same sex relationships as having the same legal standing as de facto relationships. The Act also provides protection for those in same sex de facto relationships. Under this Act a de facto relationship is defined as any relationship where two unmarried and unrelated people live together in a domestic setting. Such couples must have been in a domestic relationships for more than two years, believe themselves to be in a long term relationships and intend to form a long standing bond and be recognised by others as a couple. The Act provides protection to people in same sex de facto relationships in property division, inheritance and decision making. The Property (Relationships) Legislation Amendment Act 1999 replaced the Wills, Probate and Administration Act 1898 and allowed for various inequalities to be ironed out such as when a person dies intestate or with no legal will. Under the old laws, homosexual partners would not receive a share of the deceased’s estate. This was changed in the amendment act of 1999, which allowed for same-sex partners to forward a claim of inheritance in the case of intestacy. Also given that there has been a vast change in legal recognition since 1975, when homosexual activity was a criminal offence, to the situation in 2010 where only one area of inequality remains. It can be stated that the legal system has been highly effective for the contemporary issue of recognition of same-sex relationships.

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Current laws governing same-sex relationships have been ineffective at responding to the needs of individuals. As legalising and recognising homosexuals are two different things. It became a question of human rights for homosexuals to be recognised in relationships under Australian law. This is evident in Toonen v Australia (1994) where at that time homosexual sex was criminalized in Tasmania. Toonen argued that this violated his right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR). He also argued that because the law discriminated against homosexuals on the basis of their sexuality, it violated Article 26. ...

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