Home' LOTL : August 2005 Contents Issues
WILL WE MAKE IT DOWN THE AISLE
WITH THE MARRIAGE ACT, ASKS
Marriage, civil unions, registered
partnerships -- are you confused?
Did you know that: As a lesbian in a
same-sex de facto couple, you now
automatically inherit your partner 's assets
if they die without having made a will.
You are able to get information from
doctors and health care professionals
about your partner if they are sick.
You are also able to help make decisions
about your partner 's health care if they
are incapable of making decisions for
themselves. You can transfer property into
joint names without paying stamp duty,
saving thousands of dollars.
Property can be similarly transferred out
of joint ownership. If the relationship
ends, couples and carers can get help to
separate their finances .
New South Wales was the first state in
Australia to achieve gay and lesbian
relationship recognition in June 1999 and
most other states have now followed with
legislation that is even more
Some conditions have to be met, for
example couples need to have lived
together for at least two years to claim
property rights, but the conditions are
similar for heterosexual couples. Other
rights encompass accident and workers'
compensation, guardianship (when
someone is not able to manage their own
financial or legal affairs), bail applications
and notification of partners of those with
mental illness. These rights are currently
available to same-sex couples.
At Federal level however, covering issues
such as immigration, taxation, social
security, health insurance,
superannuation, and the Family Court, no
similar de facto recognition exists. How
can we ensure that we are treated equally
before the law? Is marriage the answer?
Same-sex marriage has been achieved in
Spain, Canada and the Netherlands, and
in the State of Massachusetts, US.
However, according to Jenni Millbank,
Associate Professor of Law at the
University of Sydney, we need to focus
on the legal and political situation in
Australia. Unlike nearly all of those
countries Australia has a conservative
Federal government, which last year
amended the law to specifically exclude
same-sex couples from marrying. And in
the US, state governments regulate
marriage laws, unlike Australia where
marriage is a Federal matter.
Some groups, including the NSW Greens,
see the solution in the states and
territories of Australia introducing their
own marriage legislation. Others argue
for the introduction of either registered
partnerships or civil unions. But there are
those who say that the priority must be de
facto recognition at Federal level if
everyone is to be treated equally.
Jenni Millbank argues that "many same
sex couples will never register their
relationships or marry when those options
become available, for a wide variety of
reasons". These reasons may include
homophobia. "What I am urging is that
we ensure that there are legal protections
in place for everyone else, for what may
in fact be the majority of lesbian and gay
couples who don't formalise their
relationship but still need rights.
"I also think it is vital that we don't help
to create a system where unmarried same
sex couples are doubly disadvantaged --
by being granted less rights than straight
unmarried couples and less rights than
married or registered same sex couples."
In Tasmania "straight couples don't have
to marry to be able to adopt any child" yet
only same sex couples who formally
register their relationship are allowed to
adopt a child (who must be a related child,
that is, 'step parent adoption'). It also
applies to access to fertility services.
Argues Millbank, "It would entrench and
not remedy inequality if we required same
sex couples to marry or register in order to
have access to those same rights."
Pursuing state-based same-sex marriage
may also mean limited rights and the
marriage having less status than marriage
under Federal law.
Do we want marriage anyway? For some
lesbians and gay men marriage has strong
symbolic appeal. As a feminist, Jenni
Millbank questions the desirability of
marriage as the ultimate equality goal
because of the history of marriage as an
institution of oppression of women. She
also challenges the idea of marriage as a
'higher status' form of relationship as
"disrespectful, even oppressive of
diversity" but she also agrees "that the
denial of the right to marry is
Recent debate in the gay press has been
vitriolic. The Gay and Lesbian Rights
Lobby (GLRL) held a community forum
in Sydney on June 18 as part of a process
of community consultation that they see
as essential to move the issue forward.
Co-convenor of the Lobby Julie
McConnell says, "We were really pleased
with the forum, quite a diverse range of
opinions were expressed. I think it was a
good first step in consultation and in
terms of getting education out to the
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