Why is marriage equality so important from a legal point of view?

Australian’s have been asked to vote on whether or not they support same-sex marriage. This is a non-binding postal vote that will then be debated in parliament. With the date of the vote getting closer, we have taken a look how marriage equality will effect same-sex couples from a legal point of view.

Whilst a common argument against same sex marriage is that same-sex couples currently have the same rights as married couples, this is not the case. First we have to look at the marriage act – under Federal law, the Marriage act says”

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

The Marriage Act has only stated this since 2004, when it was ammended under the Howard / Liberal government. Before 2004, there wasn’t a definition of what was meant by ‘marriage’ in the Act. So since 2004, the wording of the Marriage Act has specifically excluded same-sex couples from being able to marry, or from having their overseas marriage recognised here.

Same-sex couples and heterosexual couples do get the same treatment if they’re in a relationship defined as ‘de facto’. But what exactly defines de facto? The definition of de facto varies and can depend on such factors as the state you live in, whether you’re applying for a visa or even accessing Centrelink payments.  The accepted broad definition is that you have to be living together in a romantic partnership.

In day to day life, there might not be a huge difference between being de facto and being married. But in some situations, it can mean a world of difference.

What benefits would same sex couples gain from a change in the law? Other than the fact that they will be treated as equal citizens, there are actually some important legal benefits as well.

Here are 5 of the key benefits for same sex couples when we achieve marriage equality.

1.   The choice of who to marry and to have that marriage recognised in Australia

As previously mentioned, under the current law, because marriage is defined as between “a man and a woman”, not only are same sex couples prevented from getting married here, if they marry overseas, that marriage is not recognised in Australia. Amending the Marriage Act means same sex couples can get married in Australia, get married overseas and have their existing marriages acknowledged.

2.  Being able to get divorced

At the moment, if a same sex couple goes overseas to get married and then comes home to Australia, and ultimately separates, they cannot get divorced. Take for example Eve and Eve. They’ve grown up in Australia, live and work here, but they are sick of waiting for Marriage Equality to happen here. A few years ago, they flew to New Zealand for a short trip to get married and then returned to Australia. Unfortunately, it didn’t work out and they have now decided to separate. The problem is, because they live in Australia and are Australian Citizens, their marriage is not recognised, which means they cannot get divorced here. They also don’t meet the requirements to apply for divorce in New Zealand, because they do not, and have never, lived there. So, Eve and Eve are stuck in legal limbo, unable to get divorced either here or in New Zealand, essentially forcing them to be married to their Ex forever.

3. Being a legal parent to their non-biological child

Under the Family Law Act, if a married woman becomes pregnant using IVF, and her Husband consents to that procedure, he is then automatically a legal parent of that child. However, if a same sex couple uses the same process, and they later separate, the non-biological parent  would then need to prove that she was in a de facto relationship with her partner at the time of IVF to be deemed a parent. Being married gives certainty to the Husband of the heterosexual couple that is not available to the non-biological parent in a same sex couple. By allowing same sex couples to marry, if they have children by IVF, Mary is legally a parent. She does not have to go through the ordeal of having to prove the very existence of her relationship with her partner. Marriage Equality allows the choice to marry and remove this obstacle.

4. Entitlement to make a property claim

Just like having to prove their relationship to be a ‘parent’ of an IVF baby, same sex couples have to prove that they were in a ‘de facto relationship’, and that the relationship met the criteria under the law, before they can make a property claim. In certain circumstances, depending on the case – a judge can decide that a couple aren’t in a de facto relationship, they are just cohabiting. Married couples on the other hand, don’t have to provide evidence of the existence of their relationship and commitment to each other. Being married, takes away one of the legal hurdles people have to navigate.

5.  Rights in the event of death

If you are in a same sex relationship, and your partner dies, you can be faced with not only an unimaginable loss, but also a legal minefield – particularly if they die without a will. For married couples, the living spouse’s name is recorded on the death certificate, which means they can easily access things like Centrelink bereavement payments, and their late spouse’s superannuation, life insurance and financial accounts. To get the same benefits and access, a same-sex partner would have to prove the relationship, a process that could take months. If you look at a worst case scenario – the living partner could even be barred from contributing to funeral arrangements.

Probably the most heartbreaking example of this is the story of Ben Jago from Tasmania, who’s partner of five years committed suicide in 2015. Ben and Nathan owned a house together, shared a bank account, were known as a couple and planned to marry in New Zealand the next year – more than enough for them to be ‘significant partners’ (the equivalent of de facto partners) and next of kin under the Tasmanian Relationships Act. Instead two different government agencies ignored this and Nathan’s mother was deemed his closest family member, despite being estranged from her son. Ben was refused the opportunity to see Nathan’s body, had no role to play in the funeral and had no say in the funeral arrangements.

Whilst there have been changes made to legislation to recognise same-sex couples as de facto (See the Relationships Register Amendment [Recognition of Same-sex and Gender-diverse Relationships] Bill 2014). Until the law changes, same sex couples will continue to face greater legal obstacles and increased costs than their married counterparts.

It’s something for us all to consider when you receive your postal vote this September.

Do you have more questions about same-sex relationships and the law? Contact one of our family law solicitors today.

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