How to: The rights of same-sex couples

Introduction

The law is currently evolving in New Zealand and internationally as there is a greater recognition of same-sex relationships. In this country, the rights of same-sex couples are still somewhat limited, but new property laws have been passed that will, from 1 February 2002, place them on the same footing as married heterosexual couples.

Marriage and Civil Unions

At present same-sex couples cannot obtain a marriage certificate. The courts have ruled that the MARRIAGE ACT 1955 makes it implicit that marriage is a voluntary union between one man and one woman. (See How to get married).

However, a same-sex couple can enter into a civil union under the CIVIL UNION ACT 2004: see How to enter into a civil union.

Property disputes between partners

Because same-sex partners cannot legally marry, the equal-sharing rules in the MATRIMONIAL PROPERTY ACT 1976 do not apply to property disputes between them, just as those rules do not apply to heterosexual de facto couples.

It would seem that same-sex couples currently have the same rights as de facto couples in property disputes.

However, from 1 February 2002, the division of property of married and de facto couples (including same-sex couples) will be governed by the same rules. These changes are made by the PROPERTY (RELATIONSHIPS) AMENDMENT ACT 2001.

For the law governing this area, both the current and the new law, see How to: The division of property when a marriage, civil union or de facto relationship ends.

The new laws also give new rights to de facto and same-sex partners in a number of other related areas:

  • the right to receive maintenance by a former de facto partner in certain cases (see How to apply for spousal or de facto maintenance)
  • the right to challenge a will under the FAMILY PROTECTION ACT 1955 (see How to contest a will)
  • the right to receive the property of a deceased partner who died without a will (see How to deal with a relative dying without a will)

Discrimination

It would also seem that same-sex couples should be recognised as de facto couples for the purposes of the anti-discrimination laws in the HUMAN RIGHTS ACT 1993. One of the prohibited grounds of discrimination under the Act is "marital status", which includes being in a de facto relationship ("living in a relationship in the nature of a marriage"). See How to complain about discrimination to the Human Rights Commission.

Sexual orientation is also a prohibited ground of discrimination under the Act.

Protection under the Domestic Violence Act

The DOMESTIC VIOLENCE ACT 1995 has expanded the protection of physical, sexual and psychological abuse to cover abuse from a same-sex partner. See How to obtain a protection order under the Domestic Violence Act.

Cautionary Notes
  • If you are concerned about your possible legal position as a member of a same-sex couple, approach your lawyer for advice.
  • There is legislation currently before Parliament addressing the property rights of same-sex couples. The changes would bring same-sex and de facto couples within the existing equal-sharing rules for matrimonial property.


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