Dilemmas of gay marriage

Dilemmas of gay marriage

I recently presented a paper at the 5th Health in Difference conference 07 in Brisbane on the dilemmas of gay marriage.

Here it is:

Dilemmas of Gay Marriage by Stephen Page and Karen Gough

“Life, Liberty and the Pursuit of Happiness”
Thomas Jefferson, in the American Declaration of Independence 1776, could not have put the dilemma any better than that what people want is to have control over their lives, their liberties and to pursue happiness. The principal dilemma is whether to pursue marriage or to pursue a marriage-like relationship.

Which approach should be taken – to have marriages or to have relationships recognised as civil unions?

Heterosexual Couples

Until the 1960’s, the position for heterosexual couples was clear – if you were a couple, you were married. If you were not married, and you were living as though you were husband and wife, you were then considered to be living in sin. Attitudes only changed in the 60’s and 70’s so that then there was recognition that you were either living in a de jure marriage (marriage as a matter of law) or a de facto marriage (marriage as a matter of fact).

What we do know is that whilst the popularity of marriage amongst heterosexual couples has waxed and waned, there has certainly been a large increase the number of de facto couples as proportion of overall heterosexual relationships.

The Choice for Same sex Couples

Same sex couples do not have the same choice. If a heterosexual couple chooses to marry, the couple has all the recognition that the State can give that relationship pursuant to the Marriage Act.

A same sex couple, on the other hand, cannot seek that recognition. Whilst living in a de facto relationship, they can register their relationship in Tasmania and now it appears the Northern Territory and possibly Victoria, and maybe the ACT, but their relationship cannot be recognised as a marriage.

If they choose to marry overseas, for example, in Canada, then by virtue of the terms of the Marriage Act their relationship cannot be recognised in Australia.

Therefore, bizarrely, if one of the parties married twice that party could not be prosecuted for bigamy in Australia if one or both of those marriages were a same sex marriage.

Why the push for marriage?

Some countries, such as The Netherlands, have recognised gay marriages without considerable heat and light whereas in other countries, particularly the United States, there has been a great debate about whether or not same sex couples should be entitled to marry.

Amongst gay rights activists, there seem to be two schools of thought:

(a) Those wanting relationship recognition and the right to marry the person of their choice; and
(b) Those who point out the clear difference in law and rights given to those who are married as against those who are not.

From the political viewpoint, politicians recognise that it is much easier to alienate voters than to gain voters. On the one hand, some politicians might want to give substantial rights to gay and lesbian people, but on the other, politicians don’t want to be seen as attacking the sanctity of the traditional notions of marriage.

New Jersey probably shows the debate in the microcosm in Lewis v Harris (2006) . The New Jersey Supreme Court held that barring same sex couples from the rights and benefits of marriage violated the constitutional promise of equality. The Court gave the New Jersey legislature a deadline of 180 days to correct the violation, giving the legislature the option of legislating for gay marriage or for civil unions. The legislature chose to create the separate status of civil unions.

Last week the New York Times reported a potentially ground breaking legal battle over Connecticut’s exclusion of same sex couples from the State’s marriage law.

A lawyer representing eight same sex couples led a spirited attack on Connecticut’s refusal to grant gay couples the freedom to marry. He challenged the notion that civil union laws are a constitutionally adequate alternative. His argument was laced with references to Plessy v Ferguson, the US Supreme Court’s notorious 1896 decision which justified racial segregation under a deplorable standard of “separate but equal”. Although startling, the analogy is apt. The New York Times editorialises that:
“in establishing civil unions two years ago, Connecticut law makers created a separate and inherently inferior institution that continues to deny gay couples the quality they seek and deserve.
Connecticut would seem a particularly hospitable place to advance this equality claim. In addition to requiring equal treatment for individuals in comparable circumstances, and barring sex discrimination, Connecticut’s constitution explicitly forbids gender based “segregation”.
State lawyers answer that the basis for the exclusion is not gender but sexual orientation, a category not covered by existing anti-discrimination provisions. That is true, but forbidding marriages when one partner is the wrong gender still adds up to sex discrimination. The State also asserts that the civil union law grants all the rights of marriage to same sex couples, and any difference amounts to “a difference in name alone”. A trial court judge bought that argument and dismissed the case last year, saying the plaintiff suffered no legal harm.
Saying a civil union is the same as marriage does not make it so. Connecticut’s claim that the two terms are alike merely underscores the bottom line question: Why relegate a minority group to a separate category?
The court cases help stall this issue in Connecticut’s legislature. But if the ruling that goes against the couples involved, the legislature will have a duty to revisit the matter. A law that allows civil unions but not marriage is preferable to denying benefits and recognition to same sex couples. But no one should confuse it with equality.”

Traditional Notions of Marriage

The classic definition of marriage as adopted in section 5 of the Marriage Act 1961 “means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” The traditional notions of marriage have meant:

• It is a monogamous union, for life;
• Recognised by God and by the State;
• Of a heterosexual nature only;
• Includes the procreation of children.

The world has changed since 1961, but:
• In some churches gay and lesbian marriages would be celebrated;
• It is no longer the case, as a matter of law, that one of the parties must be genetically male and one of the parties genetically female for the marriage to be of a heterosexual nature. In the marriage of Kevin and Jennifer (2001) , the Family Court declared that the marriage between Jennifer (who was female) and Kevin (who was genetically female but recognised in every way as male, including having had gender reassignment surgery), was valid;
• Many married couples either cannot have children or, for a variety of reasons including careers, finances or it is a second or later marriage, choose not to have any children in that marriage.

Separate but equal
There are some gays and lesbians who do not want ever to be married and say very clearly that they do not want the benefit of other gay and lesbians to marry because of the separateness of the community. Nevertheless, anecdotal reports indicate that for younger gays and lesbians, there is an increasing desire to be able to be the same as everyone else including:
• having children
• having a career including any material benefits that they accumulate in their lives and
• the ability to have their relationship recognised (if they choose) by friends, family, the State and, if necessary, by God – by way of marriage.

We have set out below the differences that currently exist in law, at first between married and de facto couples and then between heterosexual and same sex couples

Part of the table was originally prepared by another Brisbane solicitor, Peter Sheehy. The table represents generalities only:

Married Couples De facto couples

Availability of agreements before the start of living together/marriage

Binding Financial Agreement under section 90B of the Family Law Act

Must be entered into before the marriage

Strict formalities to make them binding eg independent legal advice certificates

Once binding they may prove difficult to set aside
Cohabitation Agreement under the Property Law Act Part 19

Can be entered into at any time even after relationship commences

Less onerous requirements – need only be witnessed by a solicitor or JP (Qualified) – independent legal advice not required but considered by lawyers as essential

Cohabitation Agreements can be “varied” if serious injustice results from enforcement, or if impracticable to carry out arising out of circumstances since the making of the agreement.

After Breakdown/separation
Children’s issues – with whom children live and spend time

Family Law Act governs
Property Law Act governs

After Breakdown/separation
Children’s issues – Child Support

Child Support legislation (Cth)governs
Child Support legislation (Cth)governs


Heterosexual couples
Heterosexual + same sex couples

After Breakdown/separation
Spousal maintenance

Available under Family Law Act for up to 12 months after Divorce Order

No partner maintenance provisions in Queensland. In other States, such as NSW spousal maintenance can be obtained.

After Breakdown/separation
property settlement

Must be commenced within 1 year of Divorce Order becoming absolute or leave to proceed if out of time.
Must be commenced within 2 years of end of relationship if relying on Property Law Act or extension of time to bring application is needed

Access to Court for relief only if relationship has existed for over 2 years, or earlier access to the Court if substantial contributions or children in the relationship

Ability to seek relief under common law concepts in addition to or in the alternative to Property Law Act statutory regime.

Consideration that the Court has in determining a property settlement

Family Law Act governs

Large body of reported cases for guidance

Property Law Act governs but provisions somewhat mirror Family Law Act provisions

Each of the 8 State and Territories have come up with a different version of inventing the wheel. In NSW, for example, there is much more emphasis on financial contributions than under the Family Law Act. Conflict as to what powers to be transferred to Commonwealth for heterosexual couples, same sex couple snot being transferred.

Few reported cases

Self ordering availability to settle matters

Can use Financial Agreements to finalize matters but subject to same strict formalities as for all Financial Agreements.

Can be set aside.

No Capital Gains Tax relief Roll-over relief yet available – only available for transfers under a Court Order

Stamp Duty – sometime an inconsistent use of exemption from stamp duty applied by OSR assessors

Separation Agreements available – less onerous formalities

Can be “varied” if serious injustice results from enforcement, or if impracticable to carry out arising out of circumstances since the making of the agreement.

No Capital Gains Tax relief Roll-over relief yet available – only available for transfers under a Court Order

Stamp Duty relief specifically available under Duties Act (Qld)

Variation or setting aside Court Orders

Court Orders can be set aside – section 79A – fairly difficult
Court Orders can be varied or set aside – similar terms to Family Law Act section 79

Splitting superannuation Split under Family Law Act Cannot be split
Which court hears property settlement? Family Court or Federal Magistrates Court State Courts- in Queensland either Supreme or District Courts
Recognition of both parties as parents on birth certificate Matter of course Matter of course for heterosexual couples. Not possible in all States except WA, ACT, NT (for lesbian couples). Possible to have order under Family Law Act as to parental responsibility

IVF Allowed Allowed for heterosexual childless couples, not for lesbians
Intestate claim on estate by spouse Succession Act Qld- no difference if married, not married Succession Act Qld- no difference if married, not married. All other States similar except SA which is more restrictive
Protection Orders for domestic violence Domestic and Family Violence Protection Act Qld- orders ordinarily made in Magistrates Courts. Domestic and Family Violence Protection Act Qld- orders ordinarily made in Magistrates Courts- spousal relationships including same sex relationships. Intimate personal relationships (like enmeshed dating relationships), informal care relationships (such as unpaid HIV carers) and family relationships (covering senior abuse, or abuse from adult children) also included

Other legal issues affecting LGBTIQ people

Issue Commonwealth States
Relationship recognition
Marriage Act – heterosexual couples only.
Tasmania: civil union register.
Victoria: civil union register proposed
ACT: Commonwealth vetoed and will veto civil union register ACT has domestic partnerships
NT: domestic partnerships
Age of consent Human Rights (Sexual Conduct) Act : Sex between consenting adults (18 or over) in private, regardless of gender or sexual orientation can not be outlawed ACT: 16
NSW: 16 , 18 if under care of offender
NT: 16, 18 if under care of offender
Qld: 16, except for anal sex 18
SA: 17, 18 if under care of offender
Tasmania: 17, but variable if no anal sex
Victoria: 16, 18 if under care of offender
WA: 16, 18 if under care of offender
Transgender ACT, NSW, NT, Qld, Tas, Vic : birth certificate details can be altered if unmarried, but in Qld that condition does not apply to foreign married couples
SA, WA: general discretion as to change of name
Accident compensation N/A All States
Superannuation Unable to show spousal relationship. Need to show interdependent relationship, which is time consuming and may be difficult. Dopes not extend to Commonwealth employees, eg public servants, ADF N/A
Surrogacy N/A Commercial surrogacy illegal in ACT, Qld, SA, Tas, Vic
Non-commercial surrogacy illegal in Qld, Tas, SA
Adoption Proposed ban on overseas adoptions Not possible except in WA. Some possibilities in ACT, NSW, Tas
Parental leave Workplace Relations Act only covers maternal and paternal leave Qld: no discrimination Vic: Commonwealth law applies. Not known about other states.
Social security As same sex relationships are not recognised for payments, this results in positive discrimination!
Tax There are a number of benefits to heterosexual couples not available to same sex couples
Medicare Same sex couples miss out on some reduced rates for Medicare/recognition as family.
PBS Extends to heterosexual but not same sex couples/families.
Workers comp Does not extend to same sex couples Extends to same sex couples
Veterans Benefits “Partner” must be of opposite sex
Anti-discrimination No Yes

In a nutshell:

• There is little discrimination at the State level other than that as to adoptions;
• At the Commonwealth level there is considerable discrimination;
• The Human Rights and Equal Opportunities Commission reported to the Commonwealth Attorney-General, Philip Ruddock last week as to how, if at all, the Commonwealth legislation ought to be altered to remove the discrimination. That report has not yet been released. No doubt when Graeme Innes speaks tomorrow, we will all be enlightened. There has also been a push by, amongst others, Warren Entsch, the Member for Leichhardt, to remove the discriminatory provisions of Commonwealth Law. John Howard is reported as referring the question for costing.

In summary

Same sex couples cannot marry now in Australia. There is no dilemma about getting married as there is no choice open. There are clear legal benefits in marrying as opposed to not.

Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544

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