Marriage Equality in Australia seems to be (slowly) getting closer to becoming a reality. Up until the 1960’s, indigenous Australians in certain States, could only marry with government approval. It is shameful that more than 50 years later, the Australian Government is still trying to control who can marry.
But what benefits would same sex couples gain from a change in the law? Well, other than the fact that they are being treated as equal citizens, there are actually some important legal benefits as well.
Below, are examples of real issues that are faced by real people. Picture yourself facing these issues simply because your choice to be married to someone whom you love doesn’t fit a “definition”.
Here are 5 of the key benefits for same sex couples when (yes when) Marriage Equality does happen.
1. The choice of who to marry and to have that marriage recognised in Australia
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. Imagine making the decision to marry your loved one, only to find that that your union means nothing in your own country. Amending the Marriage Act means same sex couples can get married in Australia, get married overseas and (for those who have already taken the leap) have their existing marriages acknowledged. And spoiler alert … giving same sex Australians the right to choose who they marry will have absolutely no impact on past, existing, or future, heterosexual marriages.
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 Adam and Steve. 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. They have now decided to separate. The problem is, because they live in Australia, 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, Adam and Steve are stuck in legal limbo, unable to get divorced either here or in New Zealand. Imagine if you were forced to stay married to your ex!
3. Being a legal ‘parent’ to their non-biological child
Under the Family Law Act, if a married woman (we’ll call her Sally) becomes pregnant using IVF, and her Husband ‘Harry’ consents to that procedure, then Harry is a legal parent of that child. However, if a same sex couple uses the same process, (in this case, Harry is instead Mary) and they later separate, the non-biological parent (in this case Mary) would then need to prove that she was in a de facto relationship with Sally at the time of IVF to be deemed a parent. Being married gives certainty to Harry that is not available to Mary. By allowing Mary and Sally 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 Sally. Marriage Equality gives Mary and Sally 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. 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. How this impacts the surviving partner also varies greatly between States and Territories. Being able to make the choice to marry your partner means that if your partner passes away, you will get more rights and entitlements in the event of their death.
As I said in a previous blog post about Same Sex Marriage “Amending the Marriage Act really is the best way forward for true marriage equality and for equal treatment under the Family Law Act.”
Until the law changes, same sex couples will continue to face greater legal obstacles and increased costs than their married counterparts.
As a woman, a family lawyer, a heterosexual, an Australian, but more importantly; as a human being, I will be voting YES.
If you are in a same sex relationship, and want more information on family law, marriage equality, same sex divorce, IVF, parentage or wills and estates, you need a family lawyer to provide you with advice particular to your circumstances. Contact me and I’ll let you know how I can help.
Kasey Fox is a Family Lawyer and Director at Farrar Gesini Dunn, Canberra Office and Sydney Office
For the latest news, subscribe to our blog