Why same-sex couples still struggle with legal recognition

LAWS have gradually recognised same-sex couples as defactos in Australia but there’s some areas where they are still not equal to married couples.

THE law has come a long way in recognising defacto couples so why is it so important for same-sex couples to marry?

Heather McKinnon is an accredited family law specialist at Slater and Gordon. She said there is now no difference under the federal Family Law Act between married couples and defacto couples.

So if a defacto couple separates their childcare arrangements and assets will be split in the same way as a married couple. Laws have also been changed to allow same-sex couples to adopt children.

But she said there is one key area that is still problematic: what happens to property and other assets when a partner dies.

Ms McKinnon told news.com.au that each state has different laws when it comes to how assets are divided up, and superannuation is also a contentious area — and this poses unique problems for same-sex couples especially those from older generations.

“They are less likely to make their relationship public (particularly older couples) because of homophobia and family opposition so some family members might say ‘they are just housemates, they’re not spouses’ and shouldn’t get (proceeds from) the estate or superannuation. That’s the main area of difference,” she said.

“If you look at the case law, you could have a will that leaves everything to your partner, but you can have siblings or other families that refuse to accept it was a defacto-like relationship.”

Gay or lesbian partners may be less likely to be invited to family events like weddings and graduations and the lack of public recognition of relationships makes it harder for them to prove defacto status.

“There is often a lack of historical evidence because people were too frightened to come fully out of the closet because of the backlash that often occurred,” Ms McKinnon said.

Superannuation funds are problematic because a trustee determines who gets the money and they don’t have to follow wishes expressed in a will — something that has also tripped up heterosexual families whose children are not listed as beneficiaries.

Ms McKinnon said some cases had seen people in relationships for 30 or 40 years denied defacto status by superannuation trustees.

While cases like this are becoming less common as same-sex relationships become more accepted and open, Ms McKinnon said there were still resistance among conservative members of families to recognise these relationships at the time of death.

Some states have introduced reforms so that same-sex couples can register and be recognised legally as being in a defacto relationship, providing more certainty.

But unlike heterosexual couples, gay and lesbian partners don’t have the option to clarify their relationship status via marriage.

“I think that is what the marriage equality debate is about, it is absolutely ridiculous that we’re making people jump through different hoops,” Ms McKinnon said.

“Everyone should have the same status, this is an example of the murky waters present because the law is not keeping up with what’s happening within the broader culture.”

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The issues are tough enough to grapple with during lengthy legal battles but when it comes to emergency medical situations, it’s even harder.

Without recognition of same-sex marriage, partners can be excluded from hospital visiting rights or exercising automatic medical power of attorney for one another.

One woman whose partner died suddenly last year described her agonising ordeal when her relationship of 10 years wasn’t recognised.

Lara Ryan hosted a marriage ceremony with her partner Elise in 2010, attended by family and friends but their relationship status wasn’t recognised legally. She has faced bureaucratic hurdles with making decisions on donating organs and signing the death certificate.

“I had to ask policemen if I was ‘allowed’ to write ‘spouse’ on incident reports,” she said in a Facebook post.

“I had to cross out boxes for husband on the death certificate and boxes for father on our new baby’s birth certificate (both on the same day).

“I had to yell out in a busy, crazy emergency room, ‘She is my wife, I know it’s not legal but she is my wife!’”

Lara and Elise Ryan.

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