Flat White

You want marriage equality? Here’s the starting point

21 August 2017

7:42 AM

21 August 2017

7:42 AM

I have a niece who is an out and proud lesbian, and I love her dearly, and I also love reading her Facebook feed. So I read the occasional pro-gay marriage post, and I usually read the comments as well. These are often heartbreaking and very personal stories of people in gay relationships who have struggled to provide proof of their legal standing with their partner in crisis situations. This, we are told, is why gay people need to be able to get married.

But when you dig a little deeper, most of these stories don’t seem to add up. They seem to be cases where couples were not in a recognised (or recognisable) de facto relationship – they may have been involved with each other for years, but they didn’t live together, or share any assets or children. Sometimes these situations were complicated by the involvement of adult children of one partner who didn’t accept the relationship, and who had a greater legal claim to, say, a deceased estate than a long-time boyfriend or girlfriend who is not even in a de facto relationship.

If I am wrong, and gay people in recognised de facto relationships are struggling with obtaining their legal rights when the chips are down, then the law is being flouted very openly, in a highly discriminatory way, and this probably needs a lot of investigation.

But if I am not wrong, then it’s time to remind people that whether you are gay or straight, just ‘going out’ with someone – even for decades – doesn’t give you any real legal standing. Not without a fight, anyway. This isn’t homophobia; it’s the law in Australia, and it applies equally to gay and straight people.

However, I suspect I am not wrong. If you are cohabiting and can prove it (and it’s not hard to do this), most Australian States will recognise your relationship, straight or gay, as legally binding. A civil partnership registration scheme at State level makes it very easy for straight and gay de facto couples to have their partnership legally recognised at any time, particularly in crisis situations when difficult decisions have to be made.


Such a scheme also allows people with looser domestic arrangements to continue as they are. Spectator columnist Neil Brown has already acknowledged that there are gay people who don’t want to combine their finances with a new partner, because they anticipate that the relationship won’t have legs, and they don’t want to lose the assets accumulated over a lifetime to a short-term relationship. Straight people also sometimes make the same choice.

Most Australian States recognise de facto or registered domestic partnerships between gay couples which give them the same legal protections as marriage, including access to superannuation and pensions and Family Court services. The legal differences between marriage and registered de facto partnerships in Australia are tiny, but can become significant when there’s a divorce, like the consideration of ‘credit’ for non-financial contributions to a partnership over time.

If you really want ‘marriage equality’, then it would make more sense to seek to amend the Marriage Act to make registered de facto partnerships and marriage equal. Gay couples would get the legal protections and recognition they are apparently seeking. No one’s freedom of speech need suffer. No one’s right to buy or sell a wedding cake would be affected in any way. No church or religious group providing wedding services would have to fear prosecution for discrimination. You probably wouldn’t need a plebiscite, as this could be done through parliament. Everyone would be happy. Right?

Wrong. And this is where it gets emotive and messy. Gay people, we are told, have the right to be married. As far as I can tell, the essence of this argument is that marriage is a human right, and it’s a human right because marriage makes you happy – and only marriage can make you really happy. It’s the only way in which love can be really expressed in a meaningful and stable way.

Being unmarried myself, I can’t speak from experience, but I am assuming that’s why no one ever gets divorced in Australia, there’s no spousal abuse, and no one ever has an affair. Marriage must indeed be a little slice of heaven on earth, ‘that dweam wivin a dweam’, as The Princess Bride puts it.

What makes marriage so attractive to some – not all – gay couples? Is it the church wedding? Gay couples can already hire a church building with a civil celebrant or an open-minded vicar, with all the trimmings. Is it children? Again, already possible, and legally recognised. Is it growing old together? You can do that in any way, shape or form you want, with or without marriage. You can exchange rings with all the ceremony you want, any time, any place. And I simply don’t know that many traditionally-minded practising Christian gay couples who are yearning for their stuffy old-fashioned church’s blessing on their union.

So what’s the big attraction? If it’s legal safety equal to marriage, that can be achieved by amending the Marriage Act to give full marital-status recognition to de facto relationships. Unless this marriage equality campaign is perhaps about something else?

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