“The great thing about a marriage certificate is that everyone understands what it means and no-one can challenge it.”
Liam Elphick

14 Sep 2017 - 11:24 AM  UPDATED 21 Sep 2017 - 3:15 PM

In the midst of the postal survey on marriage equality, various arguments are being put forward as to why same-sex couples should not be able to marry. Former Prime Minister Tony Abbott has urged a ‘no’ vote in order to reject political correctness. The Archbishop of Melbourne has argued that marriage equality must be rejected “for the health and future” of society, while many others have been concerned about the protection of religious freedom. Indeed, it seems the issue of marriage equality is about anything but marriage.

Each of these arguments have been rebutted and dealt with in depth, but one primary ‘no’ argument remains largely untested: that same-sex couples already have the same rights as their married counterparts. Many columnists and commentators have raised this view; the Courier Mail’s Des Houghton recently stated that, “homosexual couples are accepted and have full legal rights. They already have equality and don’t let anyone tell you otherwise”.

Notwithstanding the symbolic importance of allowing same-sex couples to be able to call their relationship a ‘marriage’, it is also a complete myth that same-sex couples already enjoy the exact same rights as married couples. This argument probably began in 2008, when the federal Labor government passed a reform package that removed discrimination against same-sex de facto couples in areas such as taxation, superannuation, aged care, citizenship, and family law. In theory, this meant that ‘de facto’ same-sex couples should enjoy most of the legal rights that attach to marriage. However, there are two main problems with this proposition: same-sex couples have to prove their committed ‘de facto’ status in the first place (unlike married couples), and even when such status is proven, the legal rights which attach to marriage are not recognised in the same way for same-sex de facto couples as they are for married couples.

Marriage vote: how advocacy ads exploit our emotions in divisive debates
"The No campaign will continue to draw on as many negative associations as possible, especially related to children. Its campaign has been significantly dependent on fear, and shows no indication of changing."

1. Proving ‘de facto’ status

The Marriage Act 1961 (Cth) defines marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. On the federal Attorney-General’s Department website, the listed requirements for marriage are minimal: don’t already be married, don’t marry a close relative, consent to the marriage, and give written notice to a celebrant. What that means is: if a man and a woman lodge all the requisite paperwork and find a celebrant who will marry them, they can get married.

This is in contrast to de facto relationship legislation. In every state and territory in Australia, de facto relationship rights are not conferred automatically as occurs with the signing of a marriage certificate, and such relationships are instead defined by the weighing up of various factors by a court or government department. These include:

  • how long the couple has been together;

  • the nature and extent of the couple’s common residence;

  • whether there is a sexual relationship between the parties;

  • the ownership of any property between the parties;

  • the degree of mutual commitment to a shared life; and

  • how others and the public perceive the relationship.

Most Australian states and territories allow for same-sex relationships to be ‘registered’, which in some jurisdictions automatically makes a relationship ‘de facto’. However, there also discrepancies with this process. In order to register your relationship in Victoria, it’s required that couples in such a relationship “provide domestic support to each other” and are “committed to each other both personally and financially”; couples could be required to provide proof of this commitment. In Western Australia, registration is not available and therefore only a court order (taking into account the above factors) can officially declare a same-sex couple to have legal rights as a couple. In South Australia, unregistered de facto relationships must exist for two years before family law protections apply.

Married couples do not have to go through such a process: there is no need to prove a commitment to each other. Once a couple has a valid marriage certificate, that is game over and they have all the legal rights that attach to marriage. Furthermore, marriage is covered by uniform federal laws that mean it is irrelevant which state or territory you reside in, unlike the piecemeal de facto relationship laws that apply differently in each state and territory.

Family law and immigration also retain significant legal differences. Crucially, none of the state-based ‘registered’ or de facto relationships afford same-sex couples the full range of rights and remedies under the federal Family Law Act 1975 (Cth). Married couples are automatically entitled to property settlements and spousal maintenance if they split, while de facto couples must prove certain factors are present in their relationship to be granted such entitlements. And to get a partner visa, a couple must either (a) be married or (b) demonstrate they have had an ongoing de facto relationship for at least twelve months, which must be evidenced through bank statements, living arrangements and an effective ‘proof of love’ which takes into account the above factors. There is no such time requirement for married couples.

How has Ireland changed since its same-sex marriage referendum?
In Australia, as in Ireland, the same-sex marriage debate has ignited fervour on both sides. Reporter Dean Cornish visited the country two years after its referendum, to see what Australia can learn.

2. What happens in practice?

This is just one side of the problem – the other is what actually happens in practice. Many government departments are still unaware of what a registered or de facto relationship even means and do not validly apply the relevant laws. The tragic case of Ben Jago displays this. Ben was in a same-sex relationship with Nathan Lunson for five years that in every way looked like a marriage: they were building a house together, looking after dogs, sharing bank accounts and tax returns, and they loved each other. In January 2015, Nathan died by suicide. The police who arrived at Ben’s house to inform him of his partner’s death refused to allow him to see Nathan’s body or to recognise him as Nathan’s next of kin. The Tasmanian Coroner’s Office also refused to recognise Ben as Nathan’s next of kin, instead deeming Nathan’s mother to be his next of kin – despite her being estranged from Nathan. Ben had no say in the burial arrangement or funeral, and was not given any opportunity to see Nathan’s body.

This all happened despite Tasmania’s laws being clear: a de facto relationship, which Ben and Nathan undoubtedly were in, grants next of kin status to the other partner in such a relationship. The law stated that Ben should have been able to see Nathan’s body and to decide on his funeral and burial arrangements, but a lack of understanding of de facto relationship laws meant that two Tasmanian government departments refused to recognise Ben’s legal rights. As a Tasmanian official ruefully said to marriage equality advocate Rodney Croome at the time, “the great thing about a marriage certificate is that everyone understands what it means and no-one can challenge it”.

Another public story was of Marco Bulmer-Rizzi, whose husband David (whom he married in the United Kingdom) died in South Australia in 2016. South Australian officials refused Marco any say in final decisions around David’s death, and also registered on David’s death certificate the words ‘never married’. These are just two of many stories that show that even where the law grants equal rights, same-sex de facto couples are being treated as less than married couples; as less entitled to legal rights.

Whatever the other arguments that are being raised by the ‘no’ camp in the marriage equality debate, it is entirely illogical and simply untrue to suggest that marriage is not required because same-sex couples already have the same rights as married couples. Quite plainly, they don’t.

Liam Elphick is a Lecturer at the University of Western Australia Law School, with a particular research focus on anti-discrimination laws relating to LGBTIQA+ people. Read more of his work here.