Marital or domestic partnership status

Marital or domestic partnership status

Marital or domestic partnership status discrimination occurs where a person is treated unfavourably in public life because they are married or single, divorced, living in a de facto relationship or living with a same-sex partner, or because of characteristics that people of a particular marital status are presumed to have. One example would be refusing to let a flat to a same-sex couple. Another would be overlooking job applications from single people in the belief that they are not sufficiently settled.

Legislation:

Areas of discrimination on basis of marital or partnership status under SA law

Under Part 5B of the Equal Opportunity Act 1984 (SA) it is illegal to discriminate against a person on the basis of their marital or domestic partnership status. Marital or domestic partnership status includes:

being single
married
living in a de facto relationship (domestic partnership)
being separated
being divorced
being or having been widowed.

It covers relationships of opposite sex and same-sex.

Discrimination is prohibited in the following areas:

education
employment
accommodation
disposal of interest in land
conferral of qualifications
provision of goods and services
membership of associations.

Exemptions

There are exemptions in the following circumstances:

employment not connected with an employer's business
accommodation in one's own household
charities
special measures intended to achieve equality
training and ordination of priests and ministers of religion
discrimination against same sex domestic partners in relation to employment in a religious educational institution
associations administered in accordance with the precepts of a particular religion
accommodation provided by not for profit organisations for persons of a particular marital or domestic partner status
ordination and training of priests or ministers of religion.

Areas of discrimination on basis of marital or relationship status under Commonwealth law

As with the SA legislation, discrimination on the basis of marital or relationship status is prohibited under Commonwealth law. Marital or relationship status means the same as in South Australian law.

Discrimination on the basis of marital status is prohibited in the following areas:

employment
superannuation (exercise of discretion in relation to a payment if a member of a fund prior to 25^th June 1993)
qualifying bodies - conferral of qualifications
education
provision of goods, services and facilities
accommodation
disposal of interest in land
membership of clubs
administration of Commonwealth laws and programs
requests for information.

Exemptions

There are exemptions in the following circumstances.

Accommodation

where person providing the accommodation (or a near relative of theirs) is to reside there with no more than 3 other persons
where provided by a religious body
where provided by a charitable or other not for profit organisation solely for persons of a particular marital status

Employment - it is not unlawful to discriminate on the grounds of marital or relationship status:

if the position involves the care of a child or children in the place where they reside and it is intended that the spouse of the person holding the position would also occupy a position as an employee
where employment is in an educational institution established for religious purposes
training, appointment or ordination of priests or ministers of religion
voluntary bodies
charities
acts done under statutory authority e.g. an order of a Court or tribunal or decision made under an industrial award or agreement
superannuation funds
- where the fund conditions include a provision based on marital or relationship status as a result of actuarial or statistical data on which it is reasonable to rely
- where the member has no spouse and there is no or less generous provision in the event of the member’s death or incapacity

A complaint about marital or relationship status discrimination at work can also be made to the Fair Work Ombudsman.

Making a complaint

Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, this time period was 6 months, except for complaints pursuant to the Sex Discrimination Act 1984 (Cth) which was 2 years.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93].

General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394].

Marital or domestic partnership status : Last Revised: Wed Dec 14th 2022
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

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