Friday, 14 June 2019

Colombian Court rules: two men in a polyamorous relationship can claim the pension



For more than 10 years Manuel Jose Bermudez, Jhon Alejandro Rodriguez and Alex Zabala maintained a polyamorous relationship.  Shortly before Alex died, that three way polyamorous relationship became a four way polyamorous relationship when another man, Victor Prada joined the relationship.

When Alex Zabala died in 2014, the question became who would become his survivor for the purposes of his pension.  Last week the Superior Court of Medellin, in Colombia in what appears to be a world first, recognised Manuel Bermudez and Jhon Rodriguez as the survivors.

The Court said that the union between Manuel, Jhon and Alex was a “polyamorous relationship that has the components of permanence in community, implies the coupling of an identity as a family that is based on the common search for means of subsistence, and mutual company or a moral support.”

“From this perspective, the union constitutes a family constitutionally protected modality, holder of the prerogatives, rights and duties that the constitution and the law recognise to the family, as a fundamental nucleus of society, and as beneficiaries of the pension of survivors in charge of the general pension system,” the Court said.

Clarin.com reports that Manuel said from his Facebook account:
            “Survivors pension is an acquired right.  But above all it is the recognition, the worthy memory, of those who love and loved us for ten years of their lives.  Thanks to those who on the subject speak, think and decide injustice.”

The time that Victor Prada was in the relationship was not enough that he would be considered to be a survivor for the purposes of the pension.

Manuel, John and Victor were in the news in 2017 for being the first marriage between three men in Colombia.  This was the decision that they made in view of the problems they had concerning Alex’s entitlements with the pension fund.

Just as in Colombia, polyamorous relationships in Australia are on the rise.  While not common, anecdotal reports indicate that polyamorous relationships are becoming more common, particularly in the LGBTI community.  It is unlikely that the same outcome would have occurred in Australia, given that there are no constitutional protections for who constitutes a family.  Careful estate planning would need to be undertaken in such circumstances, to ensure that the survivors are able to inherit.

The last words belong to Manuel:
            “At first, people look with strangeness at a relationship like this, but as we are open and respond openly, very quickly they go to the respect and understand that we are a traditional family in many aspects, common and current, nothing extraordinary happens here.”

What an amazing week for equality- on three continents, and a step backwards

After the depressing news a couple of weeks ago that Kenya's highest court has ruled that its laws making homosexual sex illegal were valid, there have been three amazing steps forward this week:

Balanced against these outcomes is the Vatican's call that people are only male or female. The call "Male or female- He created them" does not recognise intersex or transgender people:

"The process of identifying sexual identity is made more difficult by the fictitious construct known as “gender neuter” or “third gender”, which has the effect of obscuring the fact that a person’s sex is a structural determinant of male or female identity. Efforts to go beyond the constitutive male-female sexual difference, such as the ideas of “intersex” or “transgender”, lead to a masculinity or feminity that is ambiguous, even though (in a self-contradictory way), these concepts themselves ac-tually presuppose the very sexual difference that they propose to negate or supersede. This oscillation between male and female becomes, at the end of the day, only a ‘provocative’ display against so-called ‘traditional frameworks’, and one which, in fact, ignores the suffering of those who have to live situations of sexual indeterminacy. Similar theories aim to annihilate the concept of ‘nature’, (that is, everything we have been given as a pre-existing foundation of our being and action in the world), while at the same time implicitly reaffirming its existence."

And for anyone who cannot achieve naturally, the Vatican says:


"The physiological complementarity of male-female sexual difference assures the necessary conditions for procreation. In contrast, only recourse to reproductive technology can allow one of the partners in a relationship of two persons of the same sex to generate offspring, using ‘in vitro’ fertilization and a surrogate mother. However, the use of such technology is not a replacement for natural conception, since it involves the manipulation of human embryos, the fragmentation of parenthood, the instrumentalization and/or commercialization of the human body as well as the reduction of a baby to an object in the hands of science and technology."

Or to put it another way, if you cannot conceive naturally, too bad, so sad. 

What an outrageous concept.

Taiwan gay marriage laws have implications for Australians


Congratulations to Taiwan for being the first country in Asia to recognise same-sex marriages.  The recent vote by Taiwan’s parliament to uphold the laws came within a day of the deadline set by that country’s Supreme Court which had outlined the ban on same-sex couples being married as unconstitutional, and gave Taiwan’s parliament a deadline to pass laws to recognise same-sex marriage, and if it didn’t, it would make its own laws on point.

Following a public referendum, parliament then was faced with three competing bills, two of which in effect would have defeated the effect of the Supreme Court decision.  The bill that passed was the only one that properly recognised same-sex marriages. 
Now for the first time, same-sex couples have and are able to be married in Taiwan.  They are able to participate in a stepparent adoption.  Adoption is not generally allowed for them.  Similarly there is no ability for them to engage in surrogacy as a married couple.
According to the existing Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, Taiwanese citizens can only marry foreign same-sex spouses who are citizens of countries where same-sex marriage is legal.  Article 9 of the Act makes plain:
            “The legal capacity of a person is governed by his/her national law.”
Therefore an LGBT Taiwanese person can engage in a same-sex marriage with an Australian citizen.  If an Australian citizen has multiple citizenships, then it would seem that because that person is an Australian citizen (and equal marriage is allowed in Australia) then the couple can marry.  However, it would be wise to obtain advice from a Taiwanese lawyer before marrying first. 
If one of the spouses to be is a citizen of a country that does not recognise same-sex marriage, for example, the Peoples Republic of China, then that marriage will not be recognised.  The Peoples Republic does not allow multiple citizenships (unlike Australia).  Therefore a gay or lesbian Chinese citizen living in Australia as a permanent resident who wishes to marry in a same-sex marriage with a Taiwanese citizen, may consider obtaining Australian citizenship, then disclaiming Chinese citizenship so that that marriage is recognised in Taiwan.
Because of the complex legal issues involved, anyone in that situation ought to consider obtaining careful legal advice first before undertaking those steps.

Israel Folau now suing the ARU

Following his sacking by the Australian Rugby Union, Israel Folau is now suing the ARU for reportedly $10 million for breach of contract.

As the old Chinese curse said- "may you live in interesting times." It is interesting to see whether he is successful in his claim. Before the determination by its panel that Folau had committed a high level breach of the contract, the ARU reportedly offered Folau $1million- an offer he rejected.

Tuesday, 7 May 2019

Israel Folau committed high level breach of players code of conduct

The ABC is reporting that Israel Folau has been found to have committed a high level breach of the players code of conduct. Punishment is yet to be decided.

I am deeply saddened that a player of his extraordinary abilities thought that in accordance with his religious views, it was OK to say that homosexuals deserved to go to hell. Having been the subject of homophobic abuse and glares, the pain that these comments make is terrible.

For your information Israel Folau, my husband and I celebrated our marriage in the eyes of God. How does that stack up with the idea we too are going to hell?

To be paid lots and lots of money to kick a ball in the public eye brings with it responsibility- including to gay kids who want to play rugby. His words to those who aren't gay give encouragement to bully and torment those who they think are gay.

Some kids will kill themselves because of this torrent of ongoing abuse. Having a player in as senior position as Folau using the weight of his position to attack gays- in the guise of his religious beliefs- is disgusting.

Having known a number of the players of the Brisbane gay rugby team, the Hustlers- they love the game. Rugby is the passion of their life. What would it have said about the game if sports officials could not protect them?

I am glad that rugby league administrators also have said that they don't want Folau back. Good.

Folau has been seen crying over the impact that his words have had- on him. One day I hope he might have the insight as to the impact that his words have had on others. That day seems many years away. When that day comes, he might remember the golden rule of the Bible- which is to do unto others as you would have them do unto you. That basic rule- of the love of other members of humanity- and the humility that comes from that- seems to have been forgotten by his hatred of those who have a different sexuality to his.

High Court considers: is the gay guy dad, or just the lesbian mum?

The extraordinary tale of Masson and Parsons was heard before the High Court just before Easter- to work out whether Mr Masson is a parent. Judgment has been reserved. It is likely to be some months before we know an outcome.

Trial judge says that Mr Masson is a parent

Mr Masson was in court against the birth mother, the first Ms Parsons, and her wife, the second Ms Parsons. Mr Masson is a gay man who wanted to be a dad. He entered into a co-parenting agreement with the first Ms Parsons. He supplied a quantity of his sperm to Ms Parsons- with the result that following an at home insemination, she conceived and then gave birth to a child.

The trial judge found that Mr Masson was a parent under the Family Law Act due to:

  • his intending to be parent
  • he being genetically the parent
  • his being engaged in parenting of the child.
Both Ms Parsons were not happy with that outcome and appealed.

The Full Court said he is not a parent

The three judges of the Full Court of the Family  Court upheld the appeal. The approach taken by the trial judge to say that Mr Masson was a parent was "constitutional heresy". Because the Family Law Act did not specifically provide for someone like Mr Masson as a parent, then the requirement was to go back to State legislation- in this case the NSW Status of Children Act to determine whether or not Mr Masson was a parent. As the NSW Act did not provide for Mr Masson to be a parent, therefore he was not a parent, irrespective of:

  • his intending to be a parent
  • he being genetically a parent
  • his being engaged in parenting of the child.
Mr Masson appeals to the High Court

Mr Masson was unhappy with that outcome, and appealed. An appeal to the High Court is not as of right, and instead needs leave of the court first. Leave is only granted rarely. Mr Masson obtained special leave from Chief Justice Kiefel in December.

When the matter came before the Full Bench before Easter:

  • Mr Masson, the independent children's lawyer and the Commonwealth argued that the Full Court had got it wrong, and that Mr Masson was a  parent- because the category of who was a parent under that Act was not fixed, and therefore that Act overrode the NSW Act under the Commonwealth Constitution.
  • The two Ms Parsons and the State of Victoria argued that the Full Court got it right, because they said there is a consistent scheme between the Commonwealth, the States and Territories about who is and who is not a parent- and Mr Masson therefore is not a parent.

We wait and see what approach the High Court takes. If the High Court decides that Mr Masson is a parent, then it is likely it will do so on the basis invited by the Commonwealth- namely every case needs to be decided on its own facts about whether someone is or is not a parent.

The three pronged test is commonly used in the US to determine parentage of children conceived through assisted reproductive treatment- the most significant element being whether or not someone intended to be a parent. If they did not intend to be a parent then whether they are genetically a parent does not make them so. By contrast, just because someone is not genetically  parent but intended to be a parent, then they may be found to be a parent.

We are living in the ancient Chinese curse: "May you live in interesting times."
 

Rainbow Families Qld: Making Rainbow Babies

Rainbow Families Queensland is hosting for the first time Making Rainbow Babies- all wanna be parents want to know about how to conceive and raise children:

  • IVF
  • artificial insemination
  • surrogacy
  • use of egg and sperm donors
  • legal issues
  • listening to children in rainbow families.
I will be a speaker on the day. I am looking forward to it- and looking forward to everyone who turns up.

The event is on 25 May in Brisbane. The details are here or through the Rainbow Families Queensland Facebook page.

I hope you can join me.