As a Family Lawyer who has practised 25 years, I have acted for all types of people. Thankfully, within states around Australia, but most importantly on a Federal level, we now have laws that do not discriminate against the rights of my clients based on their skin colour, age, religion or their sexual orientation, during a relationship breakdown.
Many people may be surprised that equal rights in relationship law already exist in the majority of relationships around Australia.
If same sex de facto couples (lesbian, gay, bisexual or transgender) (“LGBT”) enter into a relationship and then separate, then under the Family Law Act they have the same rights and entitlements by way of property settlement as if they were married.
In other words, society has grown up enough to say that we should recognise legally the rights of same sex de facto couples (as if they were married) but for some reason we won’t actually let them legally marry.
It may also surprise many readers that same sex couples can claim spousal maintenance from each other, just as if they were married and separated. It does not matter whether they are married or not, the fact that they are in a de facto relationship (including same sex relationships) means that they can apply to receive regular payments by way of maintenance from their ex-partner. The same laws, the same cases, in the same criteria apply regardless of whether the separating couple are heterosexual or same sex.
Also, same sex couples are able to enter into Prenuptial and Cohabitation Agreements (the same as married couples) which define what happens with their property in the event of any future separation.
Therefore, it is refreshing that our society has finally recognised the rights of same sex couples and protects those rights in the same way as they do married couples. There is no discrimination on a legal basis between heterosexual and same sex couples as a result of any separation when a relationship breaks down.
So why is it that many of the complex legal rights and entitlements of heterosexual couples have now been recognised and adopted by our society in various pieces of legislation, but the actual act of legally marrying is still not allowed in our country?
It is like handing a child a lolly and allowing them to eat it for the first time, but then removing the last bit of lolly from their mouth before they swallow it.
We can be proud of the fact that as a society we have moved in a legal manner towards eliminating a lot of the discrimination that existed for same sex couples when their relationship broke down. Unfortunately, there are many other areas where the LGBT Community is still severely discriminated against in day to day life.
The major issue that opponents of same sex marriage fail to appreciate is that marriage is both a legal and religious institution. The right to marry is defined in the Marriage Act and recognised in our Constitution. It is a legal right.
We also have religions in this country that recognise and hold marriage ceremonies (such as the Christian religion) as part of their teachings.
For many, the act of being married has important religious significance.
As a multi-cultural society that is a signatory to the International Convention on Human Rights, it is proper that we allow many different religions to be practised and embraced in our society.
As a Lawyer, there is little or no sense to any argument that opposes the legal adoption of same sex marriage. From a legal perspective, if our society has grown up enough to afford the same legal rights upon separation in a relationship then what is the issue with signing a piece of paper and calling someone “married” rather than “de facto”. By not allowing people to have the choice to either marry or be in a de facto relationship means that we are clearly discriminating on a legal basis against a class of people. That discrimination cannot be allowed to continue.
Whatever one’s view is about the religious suitability or not of same sex marriage, then it’s suggested that such views belong privately within each religion where one has the freedom to express those views. There is nothing wrong with members of our society being opposed to same sex marriage from a religious point of view. However, many of the opponents of same sex marriage cannot differentiate between their religious opposition and the legal reality.
The religious arguments simply have no place in the legal framework. The distinction is misunderstood and it’s time for opponents of same sex marriage to recognise the distinction between what is correct legally and what is seen as correct within their own religion.
Many clients of mine who have been practising Catholics talk about getting an “annulment”. When they refer to an “annulment”, they are talking about an annulment within the Catholic Church. In other words, it is an important procedure for them within their own religious beliefs to make sure that the marriage is annulled to enable them to re-marry within the Catholic Church. Such belief however has nothing to do with the legal landscape that relates to marriage.
There are various different religions that have different requirements within their own religious confines about separation, divorce and annulment. They are words used in a religious context, not in a legal context.
There is no denying that marriage can be both a religious and legal act. For many, however, it is simply a legal act. For others, the religious side of it is very important and is a foundation for their marriage.
A Muslim man and a Catholic man who want to divorce still have to file the same Application in the Family Court and go through the same procedure to legally divorce the other under our legal system. That does not mean that they should not be able to embrace their own religious teachings about other aspects of their marriage and separation that are important to them and their religion.
As a society, we have thankfully found it fit and proper to provide separating same sex couples with substantially the same rights as married couples under the law. It’s time to simply take the last chew of that lolly and swallow it and amend the Marriage Act so that we properly recognise and do not discriminate against lesbian, gay, bisexual and transgender people to marry legally in our country.