Marriage ‘equality’: Is there currently a marriage inequality?

Recent moves to expand the definition in Australia of marriage to include same-sex couples have been done under the banner of achieving ‘equality’, with the implication that the current situation is an inequality. This raises the question of what inequality at law currently exists.

But where is the inequality?

Unlike the situation in the US, where marriage is a matter for each of the 50 states and there is limited recognition of genuine partnerships outside of marriage, in Australia couples, regardless of sex, have significant protections at law.

Each Australian jurisdiction in its laws has some variant that recognises that a ‘spouse’ is someone with whom a person lives on a genuine domestic basis in a relationship as a couple (in other words, marriage in all but name). That is the definition of spouse for superannuation, for inheritance, and for a host of other purposes. A couple — a person and their spouse — may adopt a child or become parents of a child born through a surrogate arrangement. In a relationship breakdown, whether of a marriage or a de facto relationship, each has access to maintenance under the Family Law Act.

It is the merger of two lives, as a manifestation of ‘coupledom’, that is the core of a de facto relationship. (1) It is also the core of a marriage as the voluntary union of two people entered into for life. So, there are strong legal similarities among the different versions of a ‘coupledom’ relationship.

What are the differences?

So, what are some of the practical legal differences between marriage and being a couple? One is that the legal consequences of marriage arise as soon as the marriage is solemnised, whereas evidence may need to be assembled to demonstrate the fact of a relationship and a commitment to a shared life. In some cases there is a minimum period of two years to establish a relationship.

Married couples can get divorced. This is almost invariably a stressful process, even when a conscious uncoupling, and costs a significant amount simply to go through the Family Court process. Marriage revokes a will, whereas becoming a couple does not. Linked with this, divorce invalidates bequests to the former wife/husband.

These differences highlight the special status of marriage as a social institution. It is a contract between two people in which, in its secular form, they are reminded of the solemn and binding nature of the relationship that they are about to enter into for life.

But it is the similarities that stand out — in Australia two people, regardless or sex, sexual preference or religion, and only restricted by age and family relationship, can become a couple that is legally recognised.

So what?

The point here is not to make an argument for or against broadening the definition of marriage to include same-sex couples. The point is that there is little, if any, legal inequality in the lived experience of being a couple who are not married. For all practical purposes, a relationship is treated pretty much the same way across Australia regardless of the label attached. Which suggests that there is no inequality at law to be overcome. However, although there is no functional inequality at law, marriage is an item on the ‘relationship menu’ (2) that same-sex couples may not access and arguably, in the words of Stephen Fry, “there's something very special about the act of union being recognised by the state.” (3)