Gay Marriage: Choosing Between Substance and Symbolism

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On June 27, Australia witnessed the first same-sex marriage in a UK consulate anywhere in the world.

It was a wonderful occasion for the couple, Peter Fraser and Gordon Stevenson, but it raised many uncomfortable questions for the nation.

Why were the happy newly-weds suddenly “unmarried” the moment they stepped outside the consulate?

Why can only same-sex couples with British passports marry in Australia while same-sex couples with no relationship to another country have to go overseas to wed?

Why can same-sex marriage occur for some people in some places in Australia but not for all couples everywhere across the country?

These questions highlight how absurd it is that Australian law does not allow same-sex couples to marry, and all point to the single solution – marriage equality.

Now, in the wake of Peter and Gordon’s marriage, an even more absurd situation has arisen which makes the case for reform more compelling than ever.

Motivated by Peter and Gordon’s wedding, more and more British/Australian couples are deciding to take the plunge and apply for a UK marriage.

But some have found an unlikely barrier blocking their path – their Australian state civil partnership.

In the UK you cannot marry if you are already in a UK civil partnership.

This affects Australians because the UK Civil Partnership Act recognises Australian state and territory civil partnerships and registered relationships as UK civil partnerships.

The UK’s recognition of our civil partnerships was a big step forward a few years ago because it meant Britons and Australians could travel back and forth without losing their relationship entitlements.

But now it means that if a couple is already in an Australian state civil partnership they have to dissolve that partnership if they want to marry under UK law.

They have to choose between the respect and dignity that comes with a UK marriage, or the concrete legal benefits that come with an Australia state civil partnership.

The choice is a stark one because UK same-sex marriages, while they carry all the solemnity and affirmation of marriage, have no legal standing in Australian law and bring no rights or benefits.

In contrast, state partnerships bring benefits across state and federal law including access to spousal entitlements regardless of cohabitation, access to some parenting rights, and being able to prove spousal entitlements if challenged, say, in a medical emergency or in immigration.

Peter Fraser and Gordon Stevenson tie the knot. Image courtesy of Frank Farrugia, Same Love Photography

It is a cruel choice between symbol and substance that no couple should ever have to make.

As if to highlight the absurdity of the situation, just a few days after the first UK consular wedding the UN issued a statement saying it would recognise same-sex marriages based on where they were performed, not where the married partners live.

This means the UN recognises UK (and other overseas) marriages of Australian citizens even though the Australian Government doesn’t.

Australian same-sex married partners employed by the UN will be married at work but not at home.

Unless, of course, they’re in state civil partnerships in which case they’ll have spousal rights at home but not at work (the UN doesn’t recognise Australian civil partnerships).

No wonder some same-sex partners are increasingly bewildered.

As a same-sex partner recently said to me, same-sex couples already have to google their rights whenever they embark on a new phase in their life together, like having a child, buying a house or moving interstate.

The conflict between UK marriages and Australian civil partnerships adds yet another layer of absurdity, creating a situation that another same-sex partner I know described as “Kafka-esque”.

There are a couple of possible solutions to the problem raised by UK marriages.

In Tasmania, British same-sex marriages are recognised as civil partnerships.

This means that a Tasmanian same-sex couple married under UK law will be presumed to be in a state partnership and have all the Tasmanian and federal legal benefits that thus accrue.

But for this to really help it would need to be adopted by all the states, and even then it would add to the complexity, not remove it.

A better solution would be the recognition in Australian national law of overseas same-sex marriages as marriages, an issue currently being investigated by a Senate committee.

This would eliminate the unfair choice couples currently have to make by allowing UK same-sex marriages to carry the same legal weight as an Australian marriage.

But the simplest solution of all to the absurdity of so many overlapping and conflicting laws is to allow all same-sex couples to marry under Australian law.

There should be no more unnecessary choices between different levels of recognition and different jurisdictions.

There should be no more googling.

There is already a certificate that is recognised across the nation and around the world.

It’s called a marriage certificate and it should be available to all.

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