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Love and marriage (union/partnership/relationship)

By Wayne Morgan - posted Tuesday, 18 March 2008


While criticising the Rudd Government for opposing the “ceremonial aspects” of the ACT’s civil partnership law, Carol Johnson in On Line Opinion (February 14, 2008) described the Tasmanian Relationships Act as a “watered-down form of so-called ‘civil union’”. This is one of so many myths about the Tasmanian Relationships Act it’s hard to know where to begin.

Perhaps the best place to start is with a hypothetical and a couple of questions.

Let’s assume that two people love each other and want to formalise their relationship. They are not doing so for ulterior motives (like financial advantage, or to gain residency/citizenship for one of the partners), and they are not stupidly entering into a formalised relationship on a whim, say with a stranger they just met yesterday.

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In Australia, there are currently two existing legal mechanisms to formalise this relationship, with a third proposed but in legal and political limbo. The two existing legal mechanisms are marriage (restricted to heterosexuals) and the registry scheme that exists in Tasmania (not restricted to heterosexuals, nor indeed, to conjugal couples).

The third scheme, the one in limbo, is the ACT’s civil partnership scheme (which is not restricted to heterosexuals but is restricted to conjugal couples).

What is the difference between these three (supposedly different) legal mechanisms? What is marriage, if it’s not the granting of legal entitlements and protections through the registration of a pre-existing intimate relationship? What does the Tasmanian registry achieve, if it’s not the granting of legal entitlements and protections through the registration of a pre-existing intimate relationship? What does the ACT’s civil partnership law allow, if it’s not the granting of legal entitlements and protections through the registration of a pre-existing intimate relationship?

Of course these laws are different in their minutiae, but in intent and purpose they are ALL the same.

Let me outline some of the myths about the Tasmanian law and firmly dispel them.

Myth: The Tasmanian law is “watered down and second rate” because it does not include an official ceremony that creates the relationship.

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Reality: No ceremony by itself ever legally “creates” a relationship, not even with respect to marriage. What “creates” the legal relationship is a statement of commitment by the parties, accompanied by a government-designated official and witnesses who also attest to that relationship. Marriage is a commitment which is witnessed by individuals and validated by a government-designated official (a minister of religion or celebrant).

A Tasmanian Deed of Relationship is, legally, the same thing: a statement of commitment by the partners, which is witnessed by individuals, and validated by a government-designated official (the Registrar).

The ACT civil partnership law is again the same thing: a statement of commitment which is witnessed by individuals and validated by a government-designated official (a celebrant).

What is the difference? The only difference is that marriage and the ACT scheme require a ceremony while the Tasmanian scheme does not require it. It leaves the issue of a ceremony to the private choice of the couple involved. How, on any criteria, could a law that gives more choice rather than mandating on outmoded form, be described as “watered down and second rate”?

Myth: The Tasmanian law is “watered down and second rate” because it only allows the registration of a pre-existing intimate relationship, not the creation of a new intimate relationship.

Reality: As already stated, unless it’s being done for ulterior motives, marriage IS the registration of a pre-existing intimate relationship. Furthermore, and to turn the argument on its head, under the Tasmanian law, two people could meet one day, and the following day (if they so wished), begin the process for registering a Deed of Relationship. All they have to prove to the Tasmanian Registrar of Births, Deaths and Marriages is that they are adult, not already married or in a registered relationship, and that they are residents. How is this different to marriage or to the ACT’s “civil partnership”?

Myth: The Tasmanian law is “watered down and second rate” because it equates same-sex relationships with companions (non-conjugal relationships) rather than spouses in a marriage.

Reality: this myth totally misunderstands the policy behind the Tasmanian law. The Tasmanian law was designed to achieve equality between heterosexual marriage, same sex unions, and intimate relationships that do not involve a sexual (conjugal) aspect.

Socially speaking, all of these relationships are of equal value. We should not have a legal hierarchy that validates marriage over other forms of intimate relationship. Thus, the Tasmanian law “dethrones” marriage and treats it like other categories of intimate relationship. It does not treat same-sex partnerships “the same as” companions and “less than” marriage. It recognises that all these relationships are socially important and treats them equally before the law.

So, if all of this debate about relationship-recognition schemes has little to do with reality and has perpetuated so many falsehoods, the question must be asked: why? What are the political imperatives behind the legal lies?

The Tasmanian scheme is, and always has been, a civil union scheme. That is how it is viewed internationally. The (supposed) distinction between a “registration” and a “civil union” scheme did not exist until the ACT government decided to make it. Why? Because they wanted to “sell” their scheme (which merely mimics marriage) as somehow “better” than the Tasmanian scheme.

The distinction was then perpetuated by the Howard government and is still being perpetuated by the Rudd Government. Why? Because they are paranoid about the political influence of the Christian lobby and the Christian lobby (mistakenly) thinks that a “civil union” is too much like marriage, while a “registration” is not.

The Christian lobby fought hard to prevent the Tasmanian Relationships Act from being passed, but, having failed, they seem to have a fundamental psychological need to make everyone believe it is second rate and “not like” marriage.

The Rudd Government should stop pandering to them and do what is morally required and legally mandated under international human rights law by providing a national civil union law or at least allowing all state and territory jurisdictions to make their own decisions so that they may join Tasmania (and potentially the ACT and Victoria) in establishing civil union schemes.

The choice of whether those schemes merely “mimic” marriage (like the ACT) or go far beyond it (like Tasmania) should be left to the governments involved.

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About the Author

Wayne Morgan was a consultant to the Tasmanian Attorney General when the Tasmanian law was drafted. He is a Senior Lecturer at the ANU, College of Law.

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