Same Sex Marriage - Why not? | Southern Waters Legal

Same Sex Marriage – Why not?

Same-sex Marriage in Australia - Why not?

When people are in love more often than not they want to take further steps to signify their love for each other to the wider community.

So why shouldn’t same-sex couples be allowed to marry the person they love?

A couple may change their FB status, introduce each other to their respective nearest and dearest, move in together, get a joint bank account or acquire joint assets. These are all examples of social indicators, which are used to express one’s desire to share their life with another. Arguably, of all the social indicators, the ultimate commitment of love to another person is that of marriage.

Same-sex marriage is certainly a hot topic and many countries have made steps to recognise same-sex marriage as a legal form of marriage. These include:

  • The Netherlands;
  • Belgium;
  • Spain;
  • Canada;
  • South Africa;
  • Norway;
  • Sweden;
  • Portugal;
  • Iceland;
  • Argentina;
  • Denmark;
  • Brazil;
  • France;
  • Uruguay;
  • New Zealand;
  • United Kingdom;
  • Luxemburg;
  • Finland;
  • Ireland;
  • Parts of the United States of America;
  • Guam;
  • Pitcairn Islands;
  • Greenland; and
  • Guerrero.

For Australia to legalise same-sex marriage, all that is required is for the federal parliament to pass legislation that amends the Marriage Act 1961 (Cth) so the definition of marriage is no longer restricted to being that of “the union of a man and a woman” and instead reads “the union of two people”.

Despite popular belief, a referendum is not necessary to pass the law to amend the Marriage Act, as nowhere in the Australian Constitution prevents the making of laws for same-sex marriage. Interestingly, some international Courts have taken the view and ultimately ruled that not allowing same-sex marriage is a violation of their constitution as the exclusion of same-sex marriage would be a form of discrimination against a person’s freedom to choose their sexual orientation.

So what’s all the fuss about given how relatively simple is it to legalise same-sex marriage? It appears as though a seemingly simple edit would have a dramatic impact on a number of same-sex couples in loving relationships around the country.

So what are the current rights of same-sex couples in relation to Property?

Same-sex de-facto couples have the same rights as heterosexual de-facto couples in the eyes of the law.

A de-facto relationship is defined by the Family Law Act 1975 as being a relationship whereby parties have lived as a couple on a genuine domestic basis.

Section 4AA(2) of the Family Law Act 1975 sets out the factors a couple must prove to establish they are in a legal de-facto relationship:

  • The length of the relationship;
  • The nature and extent of the common residence;
  • The existence of a sexual relationship;
  • The dependence, interdependence, and any arrangements for financial support;
  • The ownership, acquisition and use of property;
  • The degree of a mutual commitment to a shared life;
  • The care and support of children and the performance of household duties; and
  • The reputation and public aspects of the relationship.

As with other de-facto couples, same-sex de-facto couples can also have their relationship legally registered (in some states) as evidence that a couple is in a committed relationship, however this is not mandatory. Proving a couple is in a de-facto relationship is dependent on a number of factors, which may include opening a joint bank account, purchasing a property together, photographs, recognising each other as their next of kin, or listing the other person as an emergency contact – all those social love indicators we mentioned above!

When things get messy and the relationship breaks down, one party can apply to the Family Court or the Federal Circuit Court to have financial matters determined in the same way as married couples. It’s important to act fast in making an application to the Court because the partner applying only has 2 years from the date of the break up. If outside this time, the partner seeking the Orders needs special permission from the Court to apply for Orders.

What are the rights of Same-sex couples in relation to kids?

Under the Family Law Act (FLA) both parents are responsible for the care, welfare and development of their child, regardless of whether they are married, separated or have never lived together.

By law, lesbian couples have the same parental rights as heterosexual couples. However, this does not apply to gay male couples who must either adopt or obtain parenting Orders to legally formalise their parental rights. The Family Law Act allows for parties from a same sex relationship to apply as an “interested party” and be recognised to have parental responsibility.

It is important to remember that the Court will always make the child’s best interests its primary consideration when making a decision. This will include taking into account:

  • The nature of the child’s relationship with each party;
  • The capacity of each of the parties to provide for the needs of the child, including emotional and intellectual needs;
  • The likely effect on the child of changes in his or her circumstances;
  • The need to protect the child from physical or psychological harm;
  • Any family violence involving the child or a member of the child’s family; and
  • The child’s maturity, sex and background, including any need to maintain a connection with a lifestyle or culture.

In circumstances where a child is old enough, their wishes may also be taken into consideration. The Family Court recognises and appreciates the role of same sex couples as parents and are often called upon to address issue of parenting in that forum.

The arguments against same sex marriage

We’ve heard it all before, marriage is one of the longest standing traditions and historically was always between a man and a woman. Some consider the recognition of two men or two women to be unnatural because a man and a woman were created to procreate. Because two people of the same gender are unable to procreate, the argument goes that it is unnatural and therefore should not be allowed.

A further argument against gay marriage is that the sanctity of marriage is one that should be protected, not just for traditions sake but for what it stands for and due to its religious origins.

Arguments for same sex marriage

Like other social norms and practices that have changed and transformed along with modern society, marriage does not have the meaning it once had. Marriage is no longer perceived to be ‘for life’, as parties can get divorced without fault from the other person. So the million dollar question is why should the so called sanctity of marriage be preserved when it has already changed and transformed to a certain degree to suit modern society. Is it fair to pick and choose what constitutes a breach of it’s historical meaning?

This is certainly not to say that marriage is not important but that people nowadays do not treat it in the manner they once did. For instance, over the past 10 years there have been an average of 50,000 divorces granted each year in Australia amongst an average of about 115,000 marriages. This equates to approximately 1 in 3 marriages ending in divorce.

It is also difficult to maintain the argument of religious importance when an increasing number of Australians no longer identify with any particular religion. This poses the question of whether heterosexual couples with no religious affiliation should be excluded from marrying as well?

Many believe that marriage has evolved to such a state that it no longer holds religious meaning and is rather a social display of our love and commitment to one another. It is purely the choice of the couple marrying whether they attach religious meaning to their marriage ceremony or not. Therefore, it would seem inappropriate to elect when the religious importance should apply and furthermore who it should apply to.

Moving with the times…

If we take a moment to look into our history it was not so long ago that legislation was passed for no fault divorce meaning that parties were not required to prove that their former spouse had committed an act of adultery, desertion, cruelty, habitual drunkenness, imprisonment or insanity. This is a perfect example of our law changing to reflect the current state of affairs, accepted values and social norms of a changing society.

There has never been a time in modern Australian Society where same-sex couples have been so accepted. Given that the evolving concept of marriage has become one of love over and above religion, it would be inappropriate to disentitle same-sex couples to experience and show this ultimate commitment to each other.

Southern Waters Legal is a LGBTI friendly law firm. If you would like assistance with any legal matter, please contact us today.