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Ministry of Justice: Same-Sex Couples and the Law

DISCUSSION PAPER

Response from Bill Edginton, Community Worker for GalaXies Inc. (Gay and Lesbian Christian Community of Wellington).

QUESTION 1 - What are your views about same-sex couples being able to marry?

Same-sex partners should, in principle, be able to "marry" in the sense that they can enter into a committed, mutual relationship with each other and have that recognised. Unfortunately, the term "marriage" carries patriarchal baggage, which is seen as an impediment to its extended use for same-sex relationships. The word itself is derived from the Latin word for husband, reflecting the superior role of the husband in heterosexual marriage. Notwithstanding this, the Matrimonial Property Act 1976 is based on the principle that marriage is an equal partnership. The law applying to the heterosexual model of marriage has thus become appropriate for same sex couples, where equality is a critical concern.

Following the decriminalisation of same-sex relationships, it has been possible for those in such relationships to live openly and to claim the various forms of support and privileges provided by society for those in heterosexual relationships. It is thus a logical step to extend the legal apparatus for such support and privileges to same-sex relationships. However, the institution of marriage in our society is a covenant between two people. Same-sex relationships, while commonly also being between two people, may be formed on different models. There is a contemporary discourse amongst lesbian and gay theologians and ethicists on the concept of "friendship", and concepts of "family" which may involve more than two people. One such model might be two lesbian women, their child and the gay father (through artificial insemination) of their child.

Those in same-sex relationships have the same need for social support as heterosexual partners. They have the same needs with regard to children (the right to be legal parents, to adopt children and to have court ordered access to children, parental leave, income support, tax credits for family assistance). Someone who has been in a same-sex relationship, and is caring for children born into that relationship, should be entitled to the DPB should he or she lose the support of her or his partner(s) or be inadequately maintained by them.

Same-sex partners have the same emotional relationships in terms of love, concern, and grief as opposite-sex partners. As with opposite-sex partners, same-sex partners have a shared history of intimate emotional relationship which entitles them to the privileges accorded to a remaining partner when the other partner dies. "Faithfulness is tied to remembrance, a recollection of a history of relationship demonstrated through concrete experiences" (Kowalewski/Say, Lesbian & Gay Community in Spirituality and Community, ed. Clark & Stemmeler, Monument Press, 1994). They should therefore be accorded the same rights as opposite-sex partners when one of them dies.

QUESTION 2 - If same-sex couples can't marry, what do you think about same-sex couples being able to formalise their relationship in some other way (eg registration)?

I would wish to avoid any suggestion of a "second class" of relationship. It is important for the dignity of same-sex partners that their relationships should not be viewed in any way as inferior to those of opposite-sex couples. How would "registered" status be described? One couldn't say I'm "registered" in the way one can say "I'm married". In 1896 in Plessy vs. Ferguson, the U.S. Supreme Court found "separate but equal" to be constitutional in educating black and white children. But in 1954 the court ruled that "separate" inevitably meant unequal. Would not the same inequality prove true were marriage reserved for straight couples only while gay and lesbian unions were designated otherwise?

QUESTION 3 - How do you think registration should work?

I am opposed to a "second class" of state-recognised relationships.

QUESTION 4 - What are your views about opposite-sex de facto couples being able to formalise their relationships in some other way (eg registration)?

I am opposed to a "second class" of state-recognised relationships.

QUESTION 5 - Do you think same-sex couples should have the same rights as opposite-sex couples to jointly adopt children?

Yes, very definitely. There is no reason why same-sex parents cannot provide all the nurturing which children need. Moreover, the research shows that children parented by same-sex partners exhibit no difference in their maturation from children parented by opposite-sex partners.

"There is no evidence to suggest that lesbians and gay men are unfit to be parents or that psychosocial development among children of gay men or lesbians is compromised in any respect relative to that among offspring of heterosexual parents. Not a single study has found children of gay or lesbian parents to be disadvantaged in any significant respect relative to children of heterosexual parents. Indeed, the evidence to date suggests that home environments provided by gay and lesbian parents are as likely as those provided by heterosexual parents to support and enable children's psychosocial growth."

(American Psychological Association, 1995: Lesbian and Gay Parenting – a Resource for Psychologists.)

"The atmosphere of a gay family may be as nurturing as a family in which the parents are differently gendered, perhaps more so." (Kowalewski / Say, p 208, Lesbian & Gay Community in Spirituality and Community, ed. Clark & Stemmeler, Monument Press, 1994.)

QUESTION 6 - In what circumstances do you think a same-sex couple ought to be able to have joint legal parent status?

Same-sex partners should have the same opportunities as opposite-sex partners. Many same-sex couples have children from an earlier marriage. It would of course be necessary for all parties (including the other biological parent) to agree and for the non-biological parent to accept the obligations of joint legal parent status.

QUESTION 7 - What are your views about same-sex couples being able to be joint parents of a child born from an assisted human reproductive procedure that they both agree to?

I consider that this option should also be available to same-sex partners.

QUESTION 8 - What is your opinion of a same-sex couple both having the right to parental leave if one of them gives birth or adopts a child?

There would be no logical reason for same-sex partners not to have this right, given that there is a mutual responsibility to parent the child

QUESTION 9 - What are your views about same-sex and opposite-sex couples being assessed in the same way for income support purposes?

Were same-sex partners to become eligible for the forms of support available to opposite-sex partners, they should be subject to the same income tests.

QUESTION 10 - What are your views about same-sex and opposite-sex couples being assessed in the same way for tax credit entitlement?

They should be assessed in the same way.

QUESTION 11 - What are your views about same-sex couples being assessed in the same way as opposite-sex couples when it comes to deciding whether people are eligible for legal aid?

In general I consider that those in all kinds of relationships should be subject to the same conditions. However, I question whether the total income of partners in a relationship should be taken into account for purposes of legal aid. Assistance for this purpose is different from assistance for the care of children where the partners have accepted joint responsibility. The purpose for which legal aid is sought might be unrelated to the partnership. My reservation would apply to both same-sex and heterosexual relationships.

QUESTION 12 - What do you think about there being a law on dividing property when same-sex relationships break down?

The De Facto Relationships (Property) Bill, if passed, will provide for the family home and chattels to be shared but allow other property to be shared according to how each partner contributed to it. I consider this would be appropriate for same-sex relationships.

QUESTION 13 - What are your views on the law on custody and access being changed to take account of same-sex relationships?

Those in same-sex relationships have the same need for social support as heterosexual partners. They have the same needs with regard to children, including eligibility for custody and court ordered access to children.

QUESTION 14 - What is your opinion of the law being changed to recognise same-sex couples when a partner dies without a valid will?

It is very important that the law should be changed for this purpose. Lesbian and gay people have suffered particularly from the lack of such recognition in the face of claims from biological kin. The provisions of the De Facto Relationships (Property) Bill, were it to include same-sex relationships, would meet this need.

QUESTION 15 - What are your views about same-sex partners being able to make claims against the estate of a dead partner who hasn’t properly provided for them?

The provisions of the De Facto Relationships (Property) Bill, were it to include same-sex relationships, would meet this situation.

QUESTION 16 - In your opinion, what areas of the law need to be changed so that same-sex relationships are recognised in the way opposite-sex relationships are when a partner dies?

Those areas of the law which give recognition to covenanted relationships; those which define next of kin; those which concern the home and chattels of those in a relationship; those which concern the parenting and nurturing of children; and those which concern income support and tax credits.

9 March, 2000.