Discussion in 'Science & Society' started by arauca, May 27, 2012.

  1. Asguard Kiss my dark side Valued Senior Member


    Interesting, you compared US common law marriage to Australian defacto relationships in another thread and if this is how common law marriage works in the US it's compleatly different.

    For instance defacto relationships dont have a strict time frame such as your suggesting, rather they are "judged" (if they ever need to be judged) based on a) the parties defining themselves that way and b) if a subjective measure is ever needed then it's based on a patern of behaviour.

    Mostly it's just a question asked "are you in a defacto relationship?". Only time I have ever had to prove it was when I wanted centerlink to separate my income and assets from my parents before I turned 25 and all they wanted was to see a joining of financial responsibility (joint bank accounts, joint rental property, joint bills etc)

    The ATO just ask "do you have a spouse or partner?" and as far as medical decisions they ask for emergency contact Infomation which again is just a name YOU put on a form. In fact your medical decisions may well not be made by your spouse if you chose to give someone else power of guardianship or medical power of attorney. This could be for any number of reasons including that they say no that they don't want that responsibility. Those are legally signed documents signed in front of witnesses and put into your medical file. Spouses, partners, children, parents who don't have those sorts of documents get a much lesser weight put on there word. Medical staff don't HAVE to follow there directions where as those 2 documents are legally binding

    As for the break up of assets defactos can access the family court system without having children together now, they just have to ask just like someone asking for a divorce and the same rules apply and lastly as all of these are federal powers state is irrelevant
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  3. Fraggle Rocker Staff Member

    American culture is still largely based on Christian culture. Ironically, marriage only became a sacrament in the Christian church in the 12th century, but today most American Christians act as though it's one of the Ten Commandments.

    So couples who have not had a marriage ceremony are generally not treated the same as those who have--by the law, by employers and by society.

    We all have an ICE (In Case of Emergency) contact, but if that person is not our spouse, they're expected to find our spouse. Other than that all they're going to do is help the authorities find our insurance cards (which we should carry in our wallets with the ICE card), let them know if we have any allergies or medical conditions that would affect the choice of treatment, and perhaps tell them our religion, in case a Catholic hospital and a Seventh-Day Adventist hospital are equidistant from the accident scene.

    If it comes to a decision about using a risky surgery, pulling the plug, etc., only the "next of kin" will have that right. If you're married it's your spouse, otherwise it will be your child, sibling, parent, etc., pretty much the same chain of kinship they use to determine whom to give your money to if you die intestate. This is one of the most important issues in the gay marriage controversy: a gay man is in the hospital, and rather than let the partner he's been living with for 30 years make life-or-death decisions, they're going to waste several hours trying to find his estranged sister. Also, the insurance company won't allow him to be covered by his group insurance policy.

    Welcome to the 19th century.
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  5. Asguard Kiss my dark side Valued Senior Member

    Yea, ironically the reason why our defacto laws are so good is the marriage equality debate (the marriage act being federal legislation here even though hatches matches and dispatches are state departments) The federal goverment wanted to skirt the issue during the last parliament (when Rudd was PM) so they brought in a bill designed to remove all discrimination by sex out of any federal legislation (except the one people most wanted of course). This mega bill also strengthened the defact recognition for BOTH same sex and opposite sex couples

    One of the main ones here was elderly same sex couples being unable to move into the same room in a nursing home because the second partner didn't need the same level of care. In the case of married couples they had the right to live in the same room even if they didn't BOTH need that care (its a choice, my grate grandmother needed nursing care but grate grandpar chose not to live in same room but at least they had that choice) also a lot of the nursing homes are run by church affiliated agencies and there were examples of these agencies not letting life long couples sleep in the same room simply because they were "living in sin". One of the other changes was that defactos had no right to access the family court system, insted they had to use the supreme courts (because the total value of assets almost always exceeded the max dispute value for the county courts), these are HUGELY expensive, require a barrister rather than just a solicitor and weren't really designed for family disputes, so the Bills granted access to the family court system (which is an arm of the federal courts) These were banned by this legislation, and so it benifited both same sex and oposite sex couples. The same goes for payments like life insurance, super, ADF benifits, funeral payment (for those on a pension), gold card (vet affairs), war widows pension and all other finantial "benifits" for spouses. The Bill baned discrimination across the board for these and the states all brought in complementary legislaton for there sectors. Again this benifited defactos of all genders. In fact the "gay rights movement" has brought huge benifits for all couples and hopefully we can repay them by forcing the federal gov to remove the last bit of discrimination left

    As for your comments on insurance and whatnot. Throat of that simply isn't relivant in Australia. If your unable to actually ask for it (and even then most private emergency rooms won't take much more than a broken arm) you will be taken to a public hospital where there is no charge anyway. The only thing they are interested in is Medicare number as a way to track patients and if they don't get it then they can track it down later, get it from your GP or the Medicare department of whatnot.

    As for next of kin, I don't know about the US but they have a lot less power than most people think they do. If anyone (doesn't have to be your next of kin) has a order of guardianship (either given by you or the guardianship board) or a medical power of attorney form then legally the medical staff MUST follow what they direct unless they feel it contradicts the persons wishes and then only the guardianship board can over rule. As for just a next of kin the medical staff must weigh up that against there own judgment and what they belive the person would want and make that call. For example if your performing CPR on someone and someone arrives with MPoA or guardianship documents and says stop. Unless you belive they want you to stop because they are the ones who killed person x you MUST stop. If they hand you a schedule 3 from the consent act which lists the persons wishes in there own words and is signed and witnessed you must follow it. If however its a spouse who doesn't have these documents who says "stop" then it's your call, you don't have to follow that if you don't feel comfortable. The only time this flips is once they are declared dead and the decision is being made about organ donation. Your own decisions in that case are not legally binding because your body (unlike the rest of your estate) belongs to your next of Kin to dispose of as they see fit (as long as it complies with legislation of course). You can jump up and down till your blue in the face saying you do/n't want to be an organ donor but it makes no difference, only what your next of Kin says matters.
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