Family LAw

Topics: Same-sex marriage, Family law, Homosexuality Pages: 6 (2126 words) Published: June 10, 2014
Family law is the body of law pertaining to marriage and matrimonial issues. Its main aim is to protect each member of a family, whether that family is nuclear, de-facto, single parent, Aboriginal or Torres Strait Islander or blended in nature, as family is the foundation of society. It can be argued that as society progresses in an ever developing world, the law continues to languish behind society’s changing values in regards to the recognition of same-sex relationships, surrogacy and birth technologies and the changing nature of parental responsibility. Although this argument is not true in all circumstances, it is a prominent issue which legislators face, as they are the ones who are required to ensure that the law is reflective of contemporary values. The legal recognition of same-sex relationships in Australia has evolved dramatically since the 1980s to a point where most jurisdictions provide same-sex couples with the same rights and obligations as heterosexual de-facto couples. The recognition of homosexual peoples was first reflected in 1982 through the insertion of Part 4C into the Anti-Discrimination Act (NSW). At the federal level, the 1984 Federal Sex-Discrimination Act (Cth) was enacted. Demographically, Australia is continuously developing into a more secular society, resulting in the waning influence of the Christian Church on the political front. Nevertheless, the 2004 Amendment to the 1961 Federal Marriage Act, which defined marriage as the legal union between a man and a woman”, was described by many as “enshrining the institution of marriage”, and is only reflective of the views held by the more conservative and religious members of society. To this day, the legal definition of marriage remains unreflective of society’s progressive views, resulting in the law languishing behind. Furthermore, the refusal to enact the Same-Sex Marriage Bill which was introduced by the Greens in 2005 means that Australia is not responding to its international obligations. As a signatory to the ICCPR, it is the duty of law makers to ensure that all aspects of this covenant are adequately enshrined in domestic law in order for it to be recognised in Australia. Article 26 of the ICCPR states that “all persons are not to be discriminated under the law” regardless of their sexuality. Supporters for marriage equality argue that in an increasingly agnostic society, marriage is less about religion and more about the legal protection it affords, meaning that Australia is not responding to its international duties. Opponents, however, argue that the covenant is not legally binding on Australia; therefore there is no need to enshrine marriage equality into law. This exemplifies the idea that while international covenants highlight international perceptions of equality and fairness; they are ineffective ensuring that all rights of individuals are upheld in the law of its signatory nations. This is because signatory nations may choose not to implement all terms of the covenant into their domestic law. This further demonstrates that while society moves ahead, Australian law continues to languish as current legislation does not reflect the international community and society’s evolving values in the area of marriage equality. Technology has and continues to evolve at an exponential rate; however laws governing the use of such technologies in some areas are failing to keep pace. This is apparent in the area of surrogacy and birth technologies, as developments in technology which have allowed for women who are unable to conceive to start a family have not been legalised since their development. Commercial surrogacy is illegal in NSW under the Assisted Reproductive Technology Act (2007), and it is illegal under the 2010 Surrogacy Act to partake in surrogacy overseas. Various lobby groups and organisations have opposed surrogacy on moral grounds, claiming that it would pave the way for an individual to “order” a baby. Others have embraced...
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