By Malcolm McPherson
Ben Jago[i], when his partner, Nathan, died in 2015 in Tasmania, found that de facto relationships may not always be recognised as they ought. The attending police officers, the coroner and the funeral director refused to acknowledge Ben and Nathan’s relationship and Ben’s position as next of kin. Ben was refused the right to see Nathan’s body or to plan his funeral according to Nathan’s wishes. Their relationship was not even acknowledged at the funeral. “To be treated like I meant nothing to him left me feeling like part of my soul had been crushed to dust.”
The police and coroner were incorrect in law but by the time Ben realised that and could act on that knowledge, it was already too late. There were steps that Ben could have taken to minimise the risk or avoid it altogether. Not everyone has that knowledge when it is needed. The rights of those in legal marriages are generally well known and well respected.
The Australian parliament gave full recognition to same-sex de facto relationships in 2008. Many of the most vocal opponents of marriage equality support the recognition of same sex de facto relationships. But those who claim that same-sex relationships enjoy relationship equality, “exactly the same legal status and benefits”, are either misinformed or dishonest.
The differences come down to proof and contestability. The marriage certificate, or registration of the marriage, is proof that the marriage exists. The only grounds on which the marriage can be contested are that it was not entered into legally, for example, if one of the parties was still married to someone else.
On the other hand, the existence of a de facto relationship may be decided by bureaucrats or ultimately by a court based on a large body of evidence to satisfy the criteria listed in the Family Law Act.[ii] The determination is essentially subjective with different bureaucrats or courts possibly arriving at conflicting conclusions.
‘De facto relationship’ is merely a short form of the phrase, ‘de facto marriage relationship’. ‘De facto marriage’ means ‘marriage in fact’ as opposed to ‘de jure marriage’ , that is ‘marriage in law’ or legal marriage with a marriage certificate.
The phrase ‘de facto relationships’ is peculiarly Australian. In other jurisdictions where such marriages have not been included in statute law, they are called simply, ‘common law marriage’. Dropping ‘marriage’ from the phrase, ‘de facto marriage relationships’ enabled the legal fiction that de facto relationships are ‘not marriage’. This allowed the states to legislate with respect to these relationships (‘marriage’ being a Commonwealth power).
A quick look at the history of marriage reveals that our current approach to de jure marriage is based on Roman law where marriage was a contract based on monogamy (one legal spouse), and the consent of the two citizens involved. The resulting offspring had legal rights (citizenship and inheritance) not enjoyed by those born to slaves, concubines, or, later, to servants. Marriage was not to protect children but to confer rights on some offspring and not on others.
Cohabitation and sexual intercourse have also long been a means of formalising a marriage. Among the Germanic tribes, marriages were arranged by the fathers and formalised by the wife moving in with her husband and having their first act of sexual intercourse. In the twelfth century, Canon Law codified church marriage law, amalgamating the Roman and Germanic approaches, with the Roman approach dominating.
In Australia, for most people most of the time, there is no effective difference between a de facto relationship and a legal marriage. The government has no interest in the way relationships are conducted other than to recognise where there is or has been a relationship and, when it ends, to ensure the welfare of any children and the equitable distribution of property in the event of a dispute between the parties.
Unless one or both of the parties are seeking or relying on social security benefits, it is when there is illness, separation or death that the differences between de facto relationships and legal marriage become important.
It is not unusual for parents and siblings of heterosexual couples to disapprove of the relationship of a family member and attempt to contest the existence of the relationship and the rights of the partner, especially if there is a legacy involved! They are unlikely to be successful if the two people are legally married and there are no grounds to contest the legality of the marriage.
As Ben Jago’s story illustrates, same sex couples may have more need than heterosexual couples of the clarity and certainty that legal marriage offers because of homophobia that exists in the community and in our families.
De jure marriage has the effect of protecting the rights of both partners to be kin to each other overriding the kinship claims of their biological families. Having to fight with a partner’s parents or siblings about the right to visit their partner in hospital, to determine when the life support machine is turned off or who may organise the funeral adds unnecessarily to the stress and grief of the situation. Those rights may be respected by the hospital, the police or the coroner – or they may not. It should not be necessary to fight at times when one is stressed or grieving.
Australia took the first step towards marriage equality nine years ago by recognising one kind of same-sex marriage. It only remains to extend that recognition to ‘de jure marriage’.