In the quest for marriage equality, many couples are holding off taking formal steps to recognise their relationship until full marriage equality is achieved, potentially causing themselves and their loved ones untold grief.
Sadly, Australian marriage equality law reform looks unlikely anytime soon.
Grim scenarios have been played out on heartbreaking YouTube videos like this one, following what happens when parents and partners fall out, while the subject of their mutual love lies unconscious, or dies.
But these painful experiences can be avoided – and it has nothing to do with marriage laws. While legal equality under Australian law is an important right to fight for, the ability to create a “marriage like arrangement” is perfectly legal right now and no homophobic campaigner can stop it.
The combination of a will and power of attorney, and in some states and advanced health directive, can actually provide for much more rights and certainty than what is covered by the Marriage Act.
As each state grapples with civil unions and relationship registers, the effectiveness and practicalities are questionable, given the family court, which is federal, now deals with de facto relationships as well.
Family lawyer Michael Tiyce tells Same Same that the legal definition of a de facto is that the couple isn’t married and “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”
“Leaving any decision to a court has risks. By taking the wait-until-marriage-is-law approach, simple things might be overlooked.”
Legal claims for de facto status, which are generally around property issues, are defined in the law at two years, but a court may bring that forward depending on the circumstances. This is a grey area, particularly for committed couples whose relationship has been going for less than two years.
“Whether or not you are a public couple can play a role and this effects that same sex attracted community as not all are out. Other things the family court will consider can include the sharing of bills, whether the couple lives with each other, any wills or powers of attorney, and generally how they live their life,” Tiyce explains.
The concept of de facto has other inconsistencies. Different government agencies, such as Centrelink and Veterans Affairs have different definitions, leaving confusion with people who think they are on solid ground, when they may not be.
Leaving any decision to a court has risks. By taking the wait-until-marriage-is-law approach, simple things might be overlooked, mainly around the issue of next of kin status.
This can rear its head if there’s a parent that doesn’t approve of your relationship and refuses access for hospital visitation, medical consent or in the worst case, funeral arrangements and how and where a body is laid to rest.
The principle of waiting until marriage equality exists is noble but a combination of two or three documents can relieve the heartache of the legal grey area for any couple “holding out.”
Under commonwealth marriage laws, next-of-kin status is transferred once the marriage is celebrated (provided it is done so in accordance with the law). This is not usually the case with civil unions or relationship registers. Despite this, a solution is quite easy and will provide for a “marriage like” arrangement, despite the best efforts those that fight against marriage equality.
Tiyce explains that an enduring power of attorney, a legal will and possibly an advanced health directive will remove any grey area should a partner no longer be able to consent.
Rather than fighting with a loved one’s family over who is the next of kin at a hospital ward; or debating over who makes the decision about what surgery needs to happen; or whether mum can take her son’s body from Melbourne to outback Queensland, these issues can all be handled by these legal documents.
“Powers of Attorney and health directives are state and territory based law, so each one handles them differently, although they do have a common theme to them, so they are similar, although not all states have health directives,” adds Tiyce.
“If you have a well-written enduring power of attorney, will and possibly an advanced health directive, combined those documents can provide for far more than marriage does, stopping heartache and making things clear in times of crisis.
“Sure it is not as elegant as traditional marriage, but loving couples need to balance the principle of waiting for law reform, which would seem to be some time away, against the devastating consequences of just doing nothing and something horrible happening,” he cautions.
With some basic steps, there is no need for the heartbreak to be compounded. In fact with some practical thinking, the “holding out” can be achieved, while also not risking pain down the line.
What’s better is that two loving people can come up with their rules that can trump marriage laws, forever killing the notion that “marriage-like arrangements” are banned.
Necessity is the mother of all invention after all.
This article by Miles Heffernan originally appeared at samesame.com.au/features/9479/Couples-protect-your-rights-before-equality-comes