Legal rights of same sex couples and married couples: an “urban myth”?

A recent article in the Sydney Morning Herald , “It’s an urban myth that same-sex couples and married heterosexuals have equal legal rights” (Nov 8, 2015; Tracey Spicer) suggests that there are large gaps between the legal rights of same sex couples and those of married couple. It reports a sad sequence of events, where one member of a same sex couple committed suicide, and in the aftermath the funeral took place at the directions of the deceased person’s parents, rather than as their partner wished. The article goes on to use this set of events as an argument for recognition of same sex marriage.

The case used in the article, however, seems on closer investigation not to make this point. The claim that equality of legal relationships is an “urban myth” proves to be wrong. The Tasmanian legislation relevant to this case means that this gentleman, as a member of a same sex couple, had prior rights as next of kin which should already have been recognised as superior to those of the deceased person’s mother, even without being formally “married”.

Tasmania has a “registration” system for relationships already. If the couple were committed to each other in a long term relationship they could, of course, already have been registered. Their situation was in that respect similar to that of a heterosexual “de facto” couple who chose not to marry. But even without registration the law would give the remaining partner important rights.

Under the Tasmanian Coroners Act 1995 s 3A a “spouse” has seniority of rights as a “next of kin” over a parent. Under that Act “spouse” means “other party to a significant relationship, within the meaning of the Relationships Act 2003″ (“RA 2003”). The RA 2003 s 4 says that a “significant relationship” can include a same sex couple, even if their relationship is not “registered” (though of course registration makes it easier to prove.)

So, what happened in this case? We don’t know from this report, which seems more concerned to make a political point than to be precise about the facts (and note at the end of the article, that the reporter’s trip to Tasmania was partly sponsored by the lobby group “Australian Marriage Equality”.) It may be that the relevant police or officials weren’t aware of the law, or it may be that this “spouse” didn’t make the situation clear. Some official may have behaved badly. But that happens all the time, sadly. As far as the law is concerned, no change in the law is needed to have given this gentleman seniority in “next of kin” arrangements.

The truth is that to call equality of general rights between same sex couples and married couples a “myth” is to denigrate the hard work done by those lobbying for protections for same sex couples over many decades. All Australian jurisdictions over the last 20 years have amended their laws to provide equality of legislative rights to same sex couples in almost all areas. The Commonwealth Parliament alone enacted a suite of such changes to over 80 laws in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 (Cth). There may be one or two minor areas where there is differential treatment in law, but this example from Tasmania does not seem to be one of them. It does not provide a convincing argument for changing the law of marriage.

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